International Justice Monitor

A project of the Open Society Justice Initiative

Kenyan Judge Says ICC Erred in Issuing Arrest Warrant for Two Kenyans Wanted in Bribery Case

A Kenyan High Court judge has said a judge at the International Criminal Court (ICC) erred in issuing an arrest warrant for two Kenyans wanted by the ICC for offenses against the administration of justice. This decision was made in November 2017 but only recently published online.

Judge Luka Kimaru declined to issue an order to execute an ICC arrest warrant for Paul Gicheru, a lawyer, and Philip Kipkoech Bett, stating that the single judge of the ICC’s Pre-Trial Chamber II issued the warrant on “speculative” grounds.

The judge also censured the Cabinet Secretary for Interior, the Director of Public Prosecutions, and the Attorney General for seeking an order to execute the ICC arrest warrant instead of protecting the rights of Gicheru and Bett.

He made these comments in a November 16, 2017 judgement he wrote following the government’s application for a court order to execute the arrest warrant.

On March 10, 2015, the ICC issued an arrest warrant for Gicheru and Bett, in which they are alleged to have bribed or attempted to bribe six prosecution witnesses between 500,000 shillings (about US$ 4,800 at current exchange rates) and five million shillings (about US$ 48,000) each to withdraw as witnesses. These bribery allegations are offenses under Article 70 of the ICC’s founding law, the Rome Statute.

Initially, the arrest warrant was issued under seal and then the court lifted that seal on September 10, 2015 after the ICC prosecutor informed the court that Gicheru and Bett were arrested in Kenya on July 30, 2015. Some of the pseudonyms of the witnesses given in the arrest warrant for Gicheru and Bett correspond with those of witnesses who testified during the ICC trial of Deputy President William Samoei Ruto and Joshua arap Sang, which was terminated in April 2016.

“The Pre-trial Chamber of the International Criminal Court clearly fell in error when it assumed jurisdiction on the basis of undisclosed “available information before the court” that “an effective national prosecution is unlikely in the particular circumstances of the present case” and that “in the circumstances, the Single Judge also does not consider there is need to consult any State Party that may have jurisdiction over the offences allegedly committed,” wrote Judge Kimaru in his November 16 judgement.

“No evidence was presented to this court by the Applicant to support the above contention by the Single Judge of the Pre-trial Chamber that Kenya, as a State Party, is unwilling or unable to investigate and prosecute the Respondents if such evidence of the commission of offences against administration of justice was presented to the constitutionally mandated organs of the Republic of Kenya,” said Judge Kimaru.

The applicant before Judge Kimaru was the Republic of Kenya through the Cabinet Secretary for Interior. The application Judge Kimaru was considering was dated May 28, 2015, and it was accompanied by an affidavit sworn by Joseph Nkaissery who was the Cabinet Secretary for Interior at the time. The respondents are Gicheru and Bett.

The judge said in his judgement that “the least” the ICC prosecutor should have done was to present the Kenyan High Court with evidence to show why the witness bribery case would not be prosecuted effectively in Kenya.

“This court holds that the above finding reached by the Single Judge of the Pre-trial Chamber of the International Criminal Court is speculative in so far as no attempt was made by the Single Judge of the Pre-trial Chamber or the Office of the Prosecutor of the International Criminal Court to consult the necessary State Part (in this case, the Republic of Kenya),” said Judge Kimaru.

Last year Judge Kimaru heard submissions on the application for an order to execute the ICC arrest warrant over several days including July 20; July 26; and July 27. Lawyers representing the Director of Public Prosecutions argued during those submissions that the ICC warrant was valid, but what the judge was to consider was whether Gicheru and Bett should be surrendered to the ICC. In his November 16 judgement Judge Kimaru indirectly addressed these submissions as he censured the Cabinet Secretary and the Director of Public Prosecutions.

“It was clear to this court that the above State officers had, in filing the present application before this court before making inquiry on the validity or legality or otherwise of the request for the surrender of the Respondents made by the International Criminal Court, abdicated their responsibilities to assert their Constitutional authority on behalf of the Republic of Kenya as a State Party of the Rome Statute to exercise jurisdiction in the first instance in respect of the offences against the administration of justice before the International Criminal Court exercised its complementarity jurisdiction as provided under Paragraph 10 of the Preamble and Article 1 of the Rome Statute of the International Criminal Court,” said Judge Kimaru.

He also criticized the application for asking the court to grant permission to search the properties of Gicheru and Bett, in the presence of ICC investigators, for mobile phones, computers, diaries, notes, or recordings of meetings and conversations, and financial and banking records.

Judge Kimaru said in his judgement that Victor Mule, one of the lawyers representing the Director of Public Prosecutions, told the court in his submissions that some materials were seized from Gicheru and Bett when they were arrested on May 28, 2015.

The judge said the arrest of Gicheru and Bett was one of the requests in the application. The request was they be arrested until the High Court reached a determination on the application. He said Judge Jessie Lessit granted the arrest order. He said on July 30, 2015 a stay order to that arrest was issued and Gicheru and Bett were each released on personal bonds of 500,000 shillings (about US$ 4,900).

“It was apparent to this court that the above requests made to the court clearly indicates that the Prosecutor of the International Criminal Court was still gathering evidence to prosecute the Respondents yet charges have already been laid against them before the International Criminal Court,” said Judge Kimaru.

“This court holds that in so far as the International Crimes Act provides that an application for surrender of the Respondents to the International Criminal Court can be made without the Respondents being supplied with evidence in support of the charge against them, such application is not sustainable and is not within the threshold mandated by the Constitution [of Kenya],” Judge Kimaru continued.

The judge also criticized the government for not investigating allegations Gicheru made that the reason the ICC arrest warrant against him was issued was because he represented someone who recanted his statement as a witness for the ICC prosecution. Judge Kimaru said Gicheru alleged that the ICC prosecution had warned him he would be charged with interfering with a witness if he did not get his client to withdraw his affidavit recanting his statement to ICC prosecution investigators.

“The allegations raised by the Respondents are serious and cannot be wished away,” the judge said.

In conclusion he said, “The application lacks merit in the circumstances and is hereby dismissed. The warrant of arrest issued by this court against the Respondents is hereby lifted.”

“For the avoidance of doubt, the Applicant shall not take any action in furtherance to the request made for the surrender of the Respondents, unless and until there is compliance with the orders of this court. It is so ordered,” said Judge Kimaru.

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