Kenyan Challenges ICC Arrest Warrant Against Him

Philip Kipkoech Bett, a Kenyan wanted by the International Criminal Court (ICC) for alleged bribery, has challenged an ICC arrest warrant against him, arguing it lacks details of the evidence against him and infringes on his fair trial rights.

Anthony Kiprono, who represents Bett, told the Kenyan High Court on July 20, 2017 that an application by Kenya’s Director of Public Prosecutions (DPP) to execute the ICC arrest warrant against Bett is flawed because the DPP had not made an independent evaluation of the warrant and was simply asking the court to execute it on its face value.

Kiprono also argued before Judge Luka Kimaru that the allegations in the ICC arrest warrant pertain to offenses that can be tried in Kenya’s courts, as provided for in the founding law of the ICC, the Rome Statute.

On September 10, 2015, the ICC’s Pre-Trial Chamber II unsealed an arrest warrant for Bett and Paul Gicheru, for allegedly paying or offering to pay six prosecution witnesses between 500,000 shillings (about US $4,800 at current exchange rates) and five million shillings (about $48,000) each to withdraw as witnesses.

The arrest warrant lists six counts against Gicheru and four against Bett. The alleged bribery or attempted bribery is alleged to have taken place between April 2013 and September 2013. When the ICC prosecution applied for the arrest warrant in February 2015, it alleged Gicheru was the manager of the bribery scheme and Bett assisted in that scheme.

The Single Judge of Pre-Trial Chamber II at the time, Ekaterina Trendafilova, issued the arrest warrant on March 10, 2015 under seal. At the ICC, a Single Judge acts on behalf of a three-person panel of judges, issuing orders on procedural and other matters during a case. Pre-Trial Chamber II decided to unseal the arrest warrant six months later when the prosecution reported that Gicheru and Bett had been arrested on July 30, 2015 by Kenyan Police. During the Kenyan High Court hearing on July 20 this year, both Gicheru and Bett were in court, seated in the public section.

The arrest warrant against them does not explicitly identify witnesses whom Bett and Gicheru attempted to bribe but the pseudonyms used in the warrant correspond with some of the pseudonyms of witnesses who testified in the now discontinued trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

The ICC’s Trial Chamber V(a) terminated that trial on April 5, 2016 in a majority decision. The trial judges determined the prosecution’s evidence had broken down and was weak. They also described as “disturbing” the level of witness interference in the trial, but the judges were clear that neither Ruto nor Sang were involved in it.

At July 20 hearing, Kiprono told the High Court that the arrest warrant for his client only stated the allegations against him but did not lay out any of the evidence against him. Kiprono argued this is against the fair trial rights Bett was entitled to under Kenya’s Constitution.

“It is our submission that before you look at the application by the DPP,” Kiprono told the court, “you must be satisfied that the constitutional safeguards are in place.”

He also said that under the principle of complementarity, national courts should be the first place any case against his client should be presented.

“My Lord, I have not seen anywhere in the application it has been said the courts or even DPP are unwilling to charge the second respondent (Bett) with the offense he is alleged to have committed,” Kiprono said.

He told the court that the Single Judge of Pre-Trial Chamber II, who issued the arrest warrant, had expressed concerns about witness protection in Kenya as one of the reasons why the judge decided the ICC has jurisdiction over the case.

Kiprono said Kenya has a law creating the Witness Protection Agency and the cabinet minister responsible for security and the attorney general are both members of the agency’s advisory board.

“So, My Lord, these concerns of the Single Judge are misplaced,” Kiprono said.

Kiprono also made reference to other provisions in the Rome Statute to oppose the DPP’s application to execute the ICC arrest warrant for Bett.

“We submit that the application is a non-starter and, when you retire to consider our responses and submissions, we urge that you dismiss it,” concluded Kiprono.

The hearing will continue on Wednesday, July 26.