Tag Archives: Parliament

Recent Court Documents in the 2 ICC Kenya Cases 20 November 2013

The Prosecutor in the Ruto/Sang case asked to appeal the decision allowing the disclosure of Prosecution Intermediaries to the Defence. The Trial Chamber rejected her request for leave.

The same Trial Chamber permitted the Government of Kenya to file observations on the effect of the Parliamentary resolutions seeking Kenya’s withdrawal from the ICC Treaty.

The Kenyatta defence asked the Trial Chamber for a stay of proceedings prior to trial due to what they allege has been abuse of process by the Prosecutor. They also wanted a evidential hearing to discuss these alleged abuses. Kenyatta’s lawyers claimed that, among other things, OTP-11 and OTP-12 conspired to tamper with evidence collection and interfere with potential defence witnesses.

The Prosecutor in the Kenyatta case asked the Trial Chamber for protective measures for its first ten witnesses, including witnesses 2, 11, 217, 232, 429, 430, 493, and 505. These measures would include voice and face distortion; pseudonyms and some in camera sessions (where sessions are closed from the public). Some of the protective measures will safeguard the witnesses who have been relocated, others are to protect persons who are not before the court. In addition witnesses 11, 217, 429, 430, 493 and 505 would, according to the OTP, need protection because the nature of their evidence may be self-incriminatory.

The Kenyatta Trial Chamber decided to excuse Kenyatta from being continuously present throughout his trial, except during:

i.                     the entirety of the opening statements of all parties and participants;

ii.                   the entirety of the closing statements of all parties and participants;

iii.                  when victims present their views and concerns in person;

iv.                 the entirety of the delivery of judgement in the case;

v.                   the entirety of the sentencing hearings (if applicable);

vi.                 the entirety of the sentencing (if applicable);

vii.                the entirety of the victim impact hearings (if applicable);

viii.              the entirety of the reparation hearings (if applicable); and

ix.                 any other attendance directed by the Chamber.

Kenyatta promptly filed a waiver of his right to be present at his trial.

Judge Ozaki dissented from the main judgement which largely mirrored and elaborated on the Ruto Absence decision. She, however, felt that there was no discretion granted to the court to waive the presence of the accused except in truly exceptional and limited circumstances such as a personal tragedy- such as in the trial of Jean-Pierre Bemba Gombo- or a national tragedy such as the Westgate Attack. Furthermore, granting a waiver to Kenyatta would violate the obligation to treat all the accused equally.

Judge Eboe-Osuji also attached a separate opinion to the decision. In it, he clearly shows the influence that the protests from the African Union and the member states have had on the question of how to treat Kenyatta and Ruto (always, Sang sits forgotten). Judge Eboe-Osuji not only felt it was worth mentioning the complaints extensively, but also argued that it might be wrong as a matter of law to ignore the views of the state parties on this particular issue of the permission granted to Ruto and Kenyatta to be absent from much of their trials.

To some extent I have sympathy with Judge Eboe-Osuji’s views: as I mentioned previously, the ICC was arguably too defensive in its initial appraisal of the complaints by African states: this may have given the impression that the court was not listening to criticism. In addition, I sympathise with Judges of the two Kenya Trial Chambers who must somehow drag these trials to conclusion in the face of two accused- William Ruto and Uhuru Kenyatta- who clearly regard the ICC as a pointless foreign annoyance now that the long-coveted offices of President and Deputy President have been attained.

The Judges see the danger that Ruto and Kenyatta present: that faced with a situation where they cannot perform both their duties to the court and to Kenyans, the two of them will not do the honourable thing and resign from office. More likely, they will resign from being ICC accused, abscond and hunker down to take the consequences.

But I think the trial chambers over-reached in their reading of the statute in order to allow prolonged absence for the two on the basis that the  ‘extraordinary functions’ of their state offices created exceptional circumstances that warranted such prolonged absence. Furthermore, the functions of Deputy President (DP), as defined in our Constitution (Chapter 9 Part 2), are arguably not as ‘extraordinary’ as the Judges in the Ruto Decision were led to believe when excusing Ruto from continuous presence at his trial. The constitution makes quite clear that Kenyatta has a deputised assistant and not a co-president, irrespective of internal power-sharing arrangements within the ruling coalition.

Yet ultimately, though not thrilled about the prospect of defendants absconding and the even less thrilled by the prospect of yet more ICC arrest warrants that might be ignored- the last thing we need is a UHURUTO-WATCH website- I think that the two Trial Chambers must simply take up the hard task of crafting another way to ensure the accused who hold office comply with their national and international duties. Success is not guaranteed, but the same could be said about any endeavour to bring justice for victims of international crimes.


Recent Court Documents in the 2 ICC Kenya Cases 18 November 2013

The Appeals Chamber asked the parties for their views on the CLR’s application. The Prosecutor said she had no objection to the CLR’s participation.

In the same matter, the Ruto and Sang defence teams filed written submissions asking the Appeals Chamber to deny the Prosecutor’s appeal to change the temporal scope of the charges.

The CLR in the Kenyatta case asked the court to deny Kenyatta’s request to be excused from continuous presence at his trial.

The Government of Kenya asked to make amicus curiae submissions on Parliament’s resolution to withdraw Kenya from the Rome Statute.

Recent Court Documents in the 2 ICC Kenya Cases 10 October 2013

The Prosecutor filed a document setting out the facts and circumstances justifying a legal re-characterisation of William Ruto’s criminal responsibility.

The Ruto/Sang Trial Chamber directed the parties to give their views on the impact on the case of the Kenyan Parliament’s motion to withdraw from the ICC- particularly with respect to in-court protective measures for witnesses. The Prosecutor, Defence and Common Legal Representative all filed replies.

Nigeria and Ethiopia also joined the bandwagon of African states seeking to enter the appeal proceedings in the Ruto/Sang case. The appeal concerns the decision permitting Ruto to be absent from large parts of his trial. The Appeals Chamber directed the Prosecutor and the Defence to give views on the Nigerian and Ethiopian applications. The Prosecutor gave her response, asking for the requests to be rejected. The defence asked the Appeals Chamber to accept the states’ requests.

After being allowed to give their views, the other five East African countries- Burundi, Rwanda, Uganda, Tanzania and Eritrea- filed joint amicus curiae observations. The Prosecutor replied, asking the court to dismiss the observations.

In the wake of the Westgate Mall massacre, the Ruto defence asked the Appeals Chamber to review its order granting suspensive effect to the Trial Chamber decision on Ruto’s presence. The suspensive order meant that Ruto had to be present throughout his trial until the appeal was heard and determined. The defence argued that as Deputy President the mandate for internal security fell under his docket, necessitating his presence in Kenya to deal with the terrorist attacks.

The Appeals Chamber rejected the request.




Kenya is not yet out of the ICC treaty. A number of steps remain before this happens. The Government could in fact proceed to give notice of withdrawal without further action from Parliament since Parliamentary approval is not required for denunciation of this particular treaty. Of course, this would have been awkward for the 2 accused who had already pledged to cooperate fully with the ICC- so they left the dirty work to Parliament.

Even the Treaty Making and Ratification Act (TMRA), which only applies to treaties made after 14 December 2012, would not have required a Parliamentary consent for treaty withdrawal. But if Parliament does pass a law requiring the Executive to withdraw from the treaty, then the Executive is probably bound to do so. I doubt the current Executive branch would protest too much at being ‘forced’ to denounce the ICC treaty. As such, a bill will probably be introduced in Parliament within the next month or two; if it is passed and receives Presidential assent (almost a given since the incumbent is an ICC accused), then the formal withdrawal process begins. When the law becomes effective, Kenya’s Permanent Representative to the UN (or another diplomat) will give notice of withdrawal to the UN Secretary General; the withdrawal will come into effect 12 months after Ban Ki Moon receives notice.

Parliament will also have to amend the International Crimes Act which specifically incorporates the ICC Statute into Kenyan law. Ironically, they will have to leave sections of that Act which deal with cooperation with the ICC to avoid embarrassing the accused who’ve stated their willingness to cooperate.


If public participation is absent in passing this vital law on withdrawal, then it could potentially be challenged in the courts. One of the principles that the drafters of the 2010 Constitution cared deeply about was that the public should have the opportunity to participate in the process of deciding Kenya’s international obligations (in treaty-making, for example). It’s not clear whether Parliament would really want genuine public participation- despite the court’s waning popularity in opinion polls, things may not go to script if Kenyans are actually allowed to say what they think about the ICC. In addition there is a clear conflict of interest in the way Parliament is going about the process. The political class, after all, are the most likely ones to bear greatest responsibility in any ICC case. Nearly half of the current ICC suspects/defendants are Politicians, Ministers or Soldier-Politicians like President Omar Al-Bashir (an Army General who took power by coup d’etat) and Jean-Pierre Bemba (former DRC Vice-President and Rebel Leader). So the political class are self-interested- unsurprisingly- in not subjecting this to a popular process.


If the nation does eventually withdraw from the ICC, it might be difficult for Kenya to rejoin if there were a change of heart. This is because in addition to Parliamentary approval by the relevant house, the TMRA now requires that a treaty that alters Kenya’s sovereignty be put to a referendum before ratification. There is a strong argument that a treaty like the ICC that compels Kenya to surrender its citizens to the court in the Hague when the court so orders (e.g. through an arrest warrant) ‘alters’ the constitutional sovereignty of the people. Indeed it is difficult to think of any international agreement in which a state does not in some subtle way voluntarily give up a part of its sovereignty (in the sense that it can no longer act against the letter and spirit of the treaty it ratifies). And it doesn’t help that neither the Constitution nor the TMRA define the word ‘sovereignty’. If a referendum must be held, it’s unlikely that any politician (at least amongst the current grubby lot) would be willing to expend time, energy and public funds campaigning for something like the ICC, especially after the Uhuruto saga.


No. If crimes against humanity, war crimes or genocide were to occur in Kenya (God forbid), the UN Security Council could still refer such a situation to the ICC. Furthermore, it is open to a future government less hostile to the ICC to lodge a declaration recognising the jurisdiction of the ICC for a particular period of time  despite Kenya no longer being a party (Article 12(3) of the Rome Statute). This happened in Cote D’Ivoire, which, despite not ratifying the Rome Statute, recognised the jurisdiction of the ICC over crimes committed in Cote D’Ivoire since 2002. It was on this basis that the Prosecutor was authorised to investigate and charge ex-President Laurent Gbagbo and his wife for crimes allegedly committed during the Post-Election Violence of 2010. Interestingly, the Cote d’Ivoire government does not feel ‘humiliated’ by a former head of state appearing at the ICC. In fact, in order to remove any doubt, the Government of Cote d’Ivoire renewed their acceptance of jurisdiction shortly after Alassane Outtara took office 3 years ago.

But what is clear is that once Kenya is outside the treaty, any future ICC legal process would have to start through a political act (either a Security Council Resolution or a sitting government recognising temporary ICC jurisdiction). And that is exactly the way the MPs- who were uncomfortable with foreign judges immune to their pressure deciding matters- want it to stay. Bear in mind that whenever a constitutional body has threatened the perks, privileges and immunities of MPs, they have responded with threats to abolish the offending institution through legal amendment. Such was the fate of the previous Anti-Corruption body under the 10th Parliament; both the Senate and the Salaries and Remuneration Commission faced the same bullying with the current National Assembly.


None whatsoever except to make MPs who voted for it shabbier than their predecessors in the 10th Parliament and to lower the standing of Kenya as a path-breaker in cracking the armour of impunity.

For the avoidance of doubt, I’ll quote the Rome Statute:

Article 127(2): “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” (emphasis added)

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law


Advancing the rule and role of law in Africa