International Justice Monitor

A project of the Open Society Justice Initiative

Lawyer Argues Kenyans Wanted by the ICC Cannot Ask for Evidence before They Have Been Charged

A lawyer who represented victims in one of the Kenya cases at the International Criminal Court (ICC) told the Kenyan High Court that individuals wanted by the ICC for alleged bribery cannot demand to see the evidence against them before they have been charged.

Wilfred Nderitu told the court on Wednesday that Paul Gicheru and Philip Kipkoech Bett, against whom the ICC has issued arrest warrants, cannot claim the fair trial rights in Kenya’s Constitution because neither of them is an accused person.

“My submission is that that is not applicable at all. (Article) 50 (2) (of Kenya’s Constitution) relates to the rights of an accused person. Neither the first respondent (Paul Gicheru) nor the second respondent (Philip Kipkoech Bett) is an accused person,” Nderitu said.

A little later, Nderitu elaborated his point.

“As they (Gicheru and Bett) are here in court they are here as suspects, not as accused persons,” he told the court.

“This is not a trial. If it was a trial then there would be witnesses that would be called in the normal way to come and give evidence,” Nderitu said, referring to the fact that the court was only hearing submissions from lawyers.

Nderitu further argued that giving evidence to a wanted individual before they are arrested would give them an opportunity to flee.

“It would be total anarchy,” he said.

Nderitu made the submissions on Wednesday as an interested party in his capacity as the lawyer who represented victims in the now terminated trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Judge Luka Kimaru has to review two applications. One is the application the Director of Public Prosecutions has made to execute the ICC arrest warrant for Gicheru and Bett. Lawyers for Gicheru and Bett have filed their own applications asking the court to quash the ICC arrest warrant.

Gicheru and Bett are wanted by the ICC on allegations they bribed or attempted to bribe six prosecution witnesses, offering between 500,000 shillings (about US $4,800 at current exchange rates) and five million shillings (about US $48,000) to each to withdraw as witnesses. These bribery allegations are offenses under Article 70 of the ICC’s founding law, the Rome Statute.

The ICC issued, under seal, the arrest warrant against them on March 10, 2015. The court lifted the seal on September 10, 2015 when the ICC prosecutor informed the court that Gicheru and Bett were arrested by Kenyan police on July 30, 2015. Some of the pseudonyms of the witnesses given in the arrest warrant for Gicheru and Bett correspond with those witnesses who testified during the trial of Ruto and Sang, which was terminated in April 2016.

On Wednesday, Nderitu listed several provisions in Kenya’s International Crimes Act that set out the procedure to be followed when the government receives a request for cooperation from the ICC. Nderitu specifically listed sections 19, 35 and 39 and argued those provisions had been complied with.

Nderitu then argued that the lawyers for Gicheru and Bett needed to show that these provisions did not provide their clients with safeguards.

“It is my submission that that has not been shown at all,” Nderitu said.

The International Crimes Act is based on the Rome Statute and was legislated after Kenya became a member of the ICC.

Later, Nderitu argued there are constitutional provisions that protect individuals against discrimination and guarantee their equality. He listed these provisions as Articles 27, 28 and 29 of the constitution.

“It is my submission that the respondents have not demonstrated how these provisions have been violated in relation to them,” Nderitu said.

One issue that Judge Kimaru and Nderitu spent some time discussing was the role of the High Court of Kenya when it is presented with a request for arrest and surrender from the ICC.

Nderitu submitted that the High Court had the power to determine whether individuals wanted by the ICC should be surrendered to that court. However, the High Court cannot determine whether there was a credible basis for an ICC arrest warrant.

“So, the warrant is a fait accompli?” asked Judge Kimaru.

“The warrant is fait accompli,” replied Nderitu. “But the court can inquire into the surrender.”

Judge Kimaru then asked Nderitu to explain how the High Court of Kenya related with the ICC. The judge asked whether the ICC was a court of concurrent jurisdiction or whether it had complementary jurisdiction or whether it was superior to the High Court of Kenya. Nderitu said the ICC was a court of concurrent jurisdiction but it has had a complementary jurisdiction.

Nderitu also told the court that the March 10, 2015 decision of the Single Judge of the ICC’s Pre-Trial Chamber II to issue an arrest warrant for Gicheru and Bett should be presumed to have been made in good faith.

Nderitu elaborated that when the Single Judge made the decision that it was appropriate for the ICC to exercise its jurisdiction in the case of Gicheru and Bett, “then it is to be presumed that all due diligence in the process of determining the appropriateness was under taken.”

Before Nderitu made his submissions on Wednesday, Judge Kimaru allowed Kibe Mungai, a lawyer representing Gicheru to present further arguments. Mungai had previously made submissions in this case more than two weeks ago.

Mungai told the court that in early 2015 his client was summoned to the Kilimani Police Station in Nairobi and asked to record a statement “in relation to alleged interference with ICC witnesses.” Mungai said that since then the police have not communicated with Gicheru.

“Therefore, we presume the investigation did not disclose any wrongdoing on the part of Gicheru,” said Mungai.

He also told the court that the Attorney General (AG) should not have been allowed to make submissions as an amicus curiae, or friend of the court.

Mungai said the Attorney General “had authorized the execution of the ICC request,” as detailed in a May 14, 2015 letter of then Cabinet Secretary for Internal Security Joseph Nkaissery to the Director of Public Prosecutions.

“As the AG had played a vital role of initiating the proceedings before you, his position as amicus in this matter is heavily compromised because it was on his advice that these proceedings commenced,” Mungai said.

Mungai also submitted that there is evidence of “very serious wrongdoing on the part of officials of the ICC,” that needed to be addressed and related to the arrest warrant for his client. Mungai did not give any details of the alleged wrongdoing but he said the allegations were in an affidavit submitted to the High Court.

“It is our submission that there is good evidence of oppression and prejudice,” Mungai said.

Once Mungai and Nderitu completed their submissions, Judge Kimaru said the hearing would continue on Thursday.

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