ICC prosecutor Fatou Bensouda is facing a dilemma over whether to appeal Friday’s decision granting President Uhuru Kenyatta the chance to skip most sessions of his trial.
Bensouda will have to make the tough decision this morning against the background of strained relationship between the court and the African Union (AU) over the Uhuru trial.
Since she appealed a similar decision in favor of deputy President William Ruto, she may be tempted by this precedent to do the same for Uhuru. But If she does this, the AU will only strengthen their resolve to severe ties with the court.
If she opts not to appeal, she will have no respite either. She will appear to have given in to political pressure of the AU. She will also appear to be playing double standards on Ruto and Uhuru who were both elected on one presidential ticket on March 4.
“She has not indicated whether or not she will appeal the decision. As you know, the decision came out late on Friday,” ICC Kenyan outreach coordinator Mariah Kamara said yesterday.
Ruto’s application was made on April 17 and decided on June 18, two months later. Uhuru’s one was however quick. He applied on September 23 and it was decided on October 18, slightly less than a month.
Bensouda not only appealed the Ruto decision, she also successfully applied for the decision to be suspended until the appeal is determined. This is what has locked Ruto in the Hague for his trial which begun last month.
Just like Uhuru’s decision on Friday, Ruto’s allowed him to attend only parts of his trial and “any other time he’s required by the chamber.”
Bensouda’s objection was largely premised on Article 27 of the Rome Statute which make official capacities of accused irrelevant at the ICC.
She also argued under Article 63 which says that “the accused shall be present during the trial.”
Meanwhile, the extradition proceedings of wanted journalist Walter Barasa took a new twist yesterday after the ICC prosecution insisted he cannot be tried in Kenya over witness interference. They said he must be surrendered to the Hague based court.
A statement from the Office of the Prosecutor (OTP) said the principle of complementarity under which Kenyan courts can try same people same crimes as the ICC does not apply in Barasa’s case.
The OTP said they had done their job and carried out investigations under Article 70 of the Rome statute. They also said the warrant issued against Barasa was at their behest and request.
Barasa is wanted at the Hague to answer to allegations of witness tampering leveled against him by prosecutor Fatou Bensouda. The judicial process of his extradition to the Hague is underway.
“Under the Rome System, the principle of complementarity does not apply to proceedings under Article 70 (as per Rule 163 and Rule 165). Article 70(4) and Rule 162 makes clear that the Court may ask a State Party to prosecute, but it is the ICC’s discretion because it has primacy over Article 70 offences,” the statement said.
It said Kenya “must cooperate fully and effectively with the Court” in the execution of the warrant as part of its obligations under the Rome statute.
– the-star
