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Was Rule 68 Altered After Kenya’s Concern?

Impartiality and Independence of the Court are two challenging terms in every judicial process. However, it is agreed that the judges or the court must be free from any external influence. Freedom from direction, control, or interference in the operation of judicial powers by either the legislative or executive arms of government. The Government of Kenya sent a credible delegation to the ASP Conference to push for the alteration of the retroactive principle used in Rule 68 that was approved in 2013 to allow the prosecution to use recanted evidence. The Kenyan team had very hard time to convince international minds why retroactive principle must not be considered in the rule and demanded that the Resolution of the ASP must include that Rule 68 shall not be applied retroactively. This blog is interested in discussing the rationale and ethics of this demand.
During the November Conference of the Assembly of State Parties at The Hague Kenyan Government was ready to push its agenda with the condition that Kenya might consider pulling out of the Rome Statute if denied their demand. Some members in the Kenyan delegation rushed to rebuke the Members by saying, now we know who our enemies are. Some said, now Kenya shall consider its withdrawal agenda from the law that established the court and even persuade other African States to do the same. The Prosecutor of the ICC insisted on the impartiality and independence of the Court.
Should the Government of Kenya succeed in convincing the ASP to rule that Rule 68 shall not be applied retroactively in search to save the DP Hon. Ruto and Arap Sang, the ICC’s impartiality and independence shall be deemed to be compromised. Is Kenya justified to arm twist international criminal justice? Is it proper for Kenya to threaten the ICC by withdrawal? Is it in line with the code of conduct and international standards for a signatory State to threaten other equal members to make hard choice? Has the Government of Kenya acted responsibly and shall this change help the Kenyan cases or not? These are the questions lingering in the minds of many law scholars now?
If anything, Kenyans have only proved to the outside world how justice system in Kenya works. On the other hand, the Chief Prosecutor, Ms Bensouda, may be strengthened by such conduct coming from a sovereign State. It shows that witnesses may not enjoy the required legal protection as demanded. Another factor is that the ICC has already issued a number of arrest warrants against some Kenyan nationals. No action has been taken by the Government in question. The same Prosecutor has accused Kenya for not collaborating with the International Court of Criminal justice. An allegation that may find its way into the minds of judges. The question is, will the judges of the ICC compromise the dignity and integrity of the Court to please Kenya?
However, Rule 68 is nothing to panic about. There are many other issues that the Court might look at while making its final verdict. The fact remains that both Hon. Ruto and Mr. Sang can still be acquitted of no offense committed in line with the international crimes. Still Kenya will get justice with or without Rule 68.
The wish of many Kenyans is that justice is done in favor of fellow nationals just as nationals of Ivory Coast would love to see Mr. Gbagbo and his wife being prosecuted in Ivory Coast and not in the ICC. In the ordinary sense, no Sovereign State is comfortable when one of its nationals are to be prosecuted outside its jurisdiction.
Interfering with the impartiality and independence of any Court is considered to be on the wrong side of justice. Should the ASP go this direction then the integrity of the ICC shall be compromised and many other like minded States may consider taking Kenyan direction.
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About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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