Late in 2013, whilst the proceedings in the Kenyans case were at various stages of trial, the ICC went before the legislative arm of the Rome Statute seeking an amendment of the Rules of Procedure and Evidence. Suffering immense setbacks owing to withdrawal, non-cooperation and recantation of evidence by many witnesses, the court first attempted compulsion. However, coercing witnesses has its own setbacks, which the Prosecutor soon became keenly alive to. An amendment to Rule 68 meant that even if a witness withdraws, his prior recorded testimony would be used in proceedings. The reasons given by the Prosecutor were that witnesses had been coerced to recant evidence or withdraw from participating in proceedings, and that a number had even disappeared.
This was a most disingenuous explanation by the Prosecution. Many its witnesses had criminal records. In the Kenyatta case, many witnesses were members of Mungiki, a dreaded murderous gang of vicious organised criminals. They were bribed to give the evidence. It would follow then that from the first instance, these were unreliable fellows willing to testify to anything in exchange for the promise of money and a good life. But this never bothered the Prosecutor, who her witnesses as living martyrs and saints. But this attitude was not without consequence.
As soon as the Prosecutor realised the weakness of her case and paucity of supporting evidence, she decided on a course of action. Not to seek leave to suspend proceedings, or to conduct fresh or further investigations. Instead, the Prosecutor resolved to have the defective evidence admitted . The amendment to Rule 68 was to give pliable judges legal basis to admit the evidence, and it was purely informed by the Kenya cases.
Against customary international international law and commonsense, the Prosecutor went before the chamber to seek the retroactive application of a rule introduces while that case was underway.This has given rise to the entire Rule 68 controversy.
Kenya’s request is concise, but it’s implications to the Prosecutor are devastating.
“The 14th Assembly decides and clarifies that rule 68 as amended by the 12th Session of the Assembly of State Parties (by resolution ICC-ASP/12/Res.7) has no retroactive applicability and cannot apply to situations commenced before the 27th November, 2013”