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Lawrence Lenayapa, Ambassador of the Republic of Kenya to the Netherlands speaking during the second
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Kenya wants accused persons excused from physical court attendance at ICC

9 December 2021 - 08:12

By Janet Sankale

janet.sankale@jfjustice.net

and Mary Wasike

mary.wasike@jfjustice.net

Kenya wants the Rome Statute amended to allow accused persons to be away during their trial at the International Criminal Court.

Speaking during the second day of the Assembly of States Parties 20th session, Lawrence Lenayapa, Kenya’s ambassador to the Netherlands, said the country had lodged its proposal for the amendment of Article 63, which states that an accused person must be present before the court for trial to proceed.

“Kenya’s proposal to amend Article 63 to allow for excusal of accused persons from continuous physical presence at trial, was prescient and remains relevant,” Lenayapa said.

He explained that the Covid-19 pandemic had made the proposal even more relevant and suggested that the use of technology be leveraged to facilitate court attendance.

“As such, it is Kenya’s position that the provision on the use of technology should further be expressly entrenched in the Rome Statute,” he said.

Such an amendment would have a bearing on many cases before the ICC, which have remained at the pre-trial stage for many years because the suspects are at large and cannot be tried in absentia.

“Kenya proposal to amend Article 63 to allow for trial of an accused person from continuous physical presence at trial was present and remains relevant,” he said.

He stated that the COVID-19 continues to ravage our world and has vindicated Kenya’s position and has demonstrated the use of technology can be leveraged upon to facilitate in attendance of an accused person at trial without physical presence.

The trial of Kenya lawyer Paul Gicheru is ongoing at the ICC. Gicheru is facing charges of the administration of justice and is accused of witness tampering in the original case against Kenyan Deputy President William Ruto and radio journalist Joshua Sang case.

The court allowed Gicheru to appear via a video link for his first status conference due to the Covid-19 pandemic.

Kenya urged state parties, the court, and stakeholders to collaborate in strengthening national and regional institutions to enable them deal with international crimes to ensure that there is no impunity gap as the ICC does not have the capacity to investigate and prosecute all cases from everywhere.

Lenayapa said the country had Kenya has enactment of legislation to facilitate investigation and prosecution of international crimes, witness protection, mutual legal assistance and recovery of assets as a way to build its capacity to investigate and prosecute international crimes and, therefore, enhance cooperation with other states and foreign entities.

He reiterated that Kenya continues to cooperate with the court in various spheres. He cited the Kenya Witness Protection Agency, saying it is developing the Witness Protection (Reciprocal Protection Arrangements) Regulations, 2021 on admission of international witnesses, admissibility assessment of an internationally relocated witness, and international relocation to give full effect to Part III of the Witness Protection Act.

“The Agency will continue to cooperate and promote the rule of law by playing its critical role in providing the necessary protection to witnesses at the national and international level” Lenayapa said.

The ambassador said Kenya had nominated lawyer Lucy Kambuni for election as a member of the Advisory Committee on Nomination of Judges, adding that she would make an important contribution to the committee.

Kenya ratified the Rome Statute of the International Criminal Court on March 15, 2005 and implemented it by the entry into force of the International Crimes Act 2008 on January 1, 2009.

Kenya is considered a dualist state – a country whose use of international legal norms was predicated on their domestication. However, international law does not supersede domestic law.

Kenya has had experience with the ICC, with its situation producing two cases. On March 31, 2010, Pre-Trial Chamber II granted the Prosecutor's request to open an investigation proprio motu (prosecutorial discretion) in the situation in Kenya in connection with events that took place between June 1, 2005 and November 26, 2009.

ICC investigations focused on alleged crimes against humanity committed in the context of post-election violence in Kenya in 2007/2008, in six of the eight Kenyan provinces. 

The investigation produced two main cases, originally with six suspects, involving charges which include crimes against humanity: murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts. However, charges were not confirmed or were withdrawn concerning the six suspects.

There are two cases involving charges against three suspects for offences against the administration of justice consisting of corruptly or attempting to corruptly influencing ICC witnesses.

This was the first situation in which the Prosecutor opened an investigation proprio motu, rather than by receiving a referral.

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