Reprieve for Ruto after ASP dumps use of recanted statements

Ruto with PopeAfter days of negotiations at the Assembly of States Parties’ 14th Session, Kenya on Thursday managed to get a resolution that could see use of recanted testimony at the ICC dropped.

Kenya pushed through its proposal that recanted statements should not be used in the case against President William Ruto and journalist Joshua Sang.

“Following the debate on the supplementary items, the Assembly recalled its resolution ICC_ASP/12/Res.7 dated November 27, 2013 which amended rule 68 of the Rules of Procedure and Evidence,” read a statement from ASP.

“Consistent with the Rome Statute, [the Assembly] reaffirmed its understanding that the amended rule 68 shall not be applied retroactively.”

The items, ‘Review of the Application and Implementation of Amendments to the Rules of Procedure and Evidence’ were introduced at the 12th Assembly.

Kenya agreed to the text after the deletion of a sentence stating, “Rule 68 was adopted, entered in force and took effect from November 27, 2013”.

But Ruto and Sang will still have to await the outcome of the appeal that they have lodged with the court over the use of the recanted statements of five witnesses.

The rule allows the use of prior recorded statements as long as the prosecutor and defence examined the witness during the recording, if the witness does not appear before the Trial Chamber.

If the witness is present, it requires that he does not not object to the submission of the testimony and that the prosecution, defence and the Chamber examine him during the proceedings.

The Kenyan delegation argued that this would beat the purpose of the resolution it sought as it would mean the Rule can be applied in cases that started before that date.

The consensus was preceded by a stalemate that forced ASP President Sidiki Kaba to call a crisis meeting of the Bureau after Kenya threatened to withdraw from the ICC.

The threat by Foreign Affairs Cabinet Secretary Amina Mohammed came after the committee tasked to tackle the Kenyan agenda failed to reach a consensus.

Kaba had in the morning convened and chaired a meeting where Kenya said that it was not compromising on its proposals.

“We attended the Assembly of States Parties’ Bureau meeting at the World Forum this morning. I registered strong objections to the lack of genuine commitment to address Kenya’s concerns,” the CS said.

“I indicated that Kenya would have no option in the circumstances other than contemplate withdrawal.”

National Assembly Majority leader Aden Duale, who is part of the Kenyan delegation, said Kenya was “standing its ground and the President was trying to end the stalemate”.

During yesterday’s morning plenary session, the ASP was informed that there was still no consensus on the omnibus resolution.

The resolution has been at the centre of discussions since Monday and is supposed to accommodate Kenya and South Africa’s concerns.

Kenya wants the ASP to affirm that the decision on Rule 68 on use of recanted testimony was to apply only to cases that kicked off after the amendment in November 2013.

During the 2013 ASP, through Resolution 7, States parties agreed to amend Rule 68, with the rider that the amendments “shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted.”


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