The Assembly of State Parties admitted requests by Kenya to have its requests included in the agenda. The first request converned the contentious rule 68 of the ICC Rules of Procedure and Evidence and particularly, as to how the Trial Chamber in Prosecutor v William Samoei Ruto and Joshua Sang interpreted and applied the rule to allow the use of inadmissible evidence. The second request by Kenya is to discuss the country’s petition for an independent audit of the investigations conducted by the Office of the Prosecutor.
South Africa also had requests connected with the ICC action of compelling it to arrest and hand over Omar El Bashir whilst in the course of official sovereign duty.
Kenya’s requests encountered immense resistance from the court itself, and, especially, the Prosecutor. There have been warnings against undermining the independence of the court and discussing matters that are pending before it. This argument is incompetent mainly because the controversial amendment to rule 68 was discussed and effected when the cases were underway. Secondly, all substantive defence requests at the ICC, with the possible exception of requests for excusal, are rejected out of hand by the chambers, whilst the prosecutor’s are routinely allowed,. It should come as no surprise that the Prosecutor is the court’s foremost defender and that it sees it as mainly impartial and independent.
But the debate on Kenya’s requests is part of a bigger contestation over the meaning of international justice and whether the ICC as presently constituted serves its purpose. If examined closely, the outstanding Kenyan cases are no longer about justice in relation to the post-election violence of late 2007- early 2008. The violence and atrocities committed nearly covered the entire country : Nairobi, Coast, Nyanza, Western and Rift Valley. The charges against Ruto and Sang relate to offences alleged to have been committed in Uasin Gishu and the greater Nandi Hills area only. Even from a victim representation point of view, this is a highly unsatisfactory parameter that is highly incongruous with the objectives of the Rome Statute. It has become difficult to establish a case against the duo without using repudiated statements, which Rule 68 seeks to introduce in a highly irregular manner.
The other question concerns the entire attitude of the ICC. Where it is sloppy, incoherent and directionless with to regard to investigation, prosecution and even-handed application of justice, it is robust, focused and persistent in heavy-handed, censorious and undemocratic extrajudicial interventions. Judge Chile Eboue has made a practice of regularly chaperoning Kenyans and their political leaders. In particular, he has pronounced himself on such far flung issues as prayer rallies and political gatherings. Although he claims that the chamber is impervious to the affairs of our politicians, his conduct reveals the contrary: that the chamber follows Kenya’s politics and politicians with the avidity of diehard partisans.
And therein lies the rub. With this irrational and insupportable obsession with local politics, how can the ICC escape the charge that it is a machinery driven to achieve political outcomes at the expense of justice? With the chicanery around Rule 68, which involved judges presiding in the case, what assurance can reasonably be made of a just determination? With the cases whittled down, chiefly owing to large-scale prosecutorial mediocrity, to incidents within a small geographical area how can the ICC claim to be pursuing justice for all the victims of post-election violence?
The audit of investigations, and especially of corrupt and unprofessional procurement of witnesses and evidence, the above questions may partially be answered. Whether they are or not is really immaterial; such fetid goings-on should never encumber an institution dedicated to international justice. The fact that the Kenyan cases have ended this way says a lot about the ICC’s overall credibility, regardless of what the chambers get up to