ICC Prosecutor Says She Had No Role in Kenyan Lawyer’s Surrender

International Criminal Court (ICC) Prosecutor Fatou Bensouda has said her office played no role in Kenyan lawyer Paul Gicheru unexpectedly surrendering last week, five years after an ICC arrest warrant was issued against him for allegedly bribing or trying to bribe ICC witnesses.

Gicheru’s surrender to Dutch authorities on November 2, 2020 fuelled speculation in Kenya because he had successfully challenged the execution of the ICC arrest warrant in Kenya where he works as a lawyer.

He got a High Court of Kenya judgment against the warrant in November 2017 and government lawyers who argued in favour of the warrant during that High Court case have not appealed that judgment.

Gicheru’s surprise arrival in The Netherlands, where the ICC is based, on Monday last week led to speculation that the ICC Office of the Prosecutor may have encouraged him to do so.

“Decisions (to surrender) were taken by Mr. Gicheru himself. And you know that this is not the first time that persons have surrendered themselves to the ICC,” said Bensouda. She spoke on November 3, during a virtual roundtable with selected African journalists.

On November 6, Gicheru told Pre-Trial Chamber A he had travelled to The Netherlands voluntarily and surrendered himself voluntarily.

“This surrender was without coercion from anybody and I did so at my own expense. So, it was a voluntary surrender. There was no coercion. There was no threat,” said Gicheru, answering Judge Reine Adélaïde Sophie Alapini-Gansou who had asked him to share his observations about the conditions of his surrender.

The people Prosecutor Bensouda referred to who had unexpectedly surrendered themselves to the ICC years after arrest warrants had been issued against them are three: Dominic Ongwen; Bosco Ntaganda; and Ali Muhammed Ali Abd-al-Rahman. Ongwen, a former Ugandan rebel commander, surrendered himself in January 2015, close to 10 years after his arrest warrant was issued. Ntaganda, a former Congolese rebel leader, surrendered himself in March 2013, close to seven years after his arrest warrant was issued. Abd-al-Rahman, a former militia leader in Sudan’s Darfur region, surrendered in August this year, 13 years after his arrest warrant was issued.

In March 2015, Pre-Trial Chamber II issued an arrest warrant for Gicheru and another Kenyan, Philip Kipkoech Bett, for their alleged roles in bribing or attempting to bribe six witnesses. The witnesses were identified by their pseudonyms in the arrest warrant. They are: Witness 397; Witness 495; Witness 516; Witness 536; Witness 613; and Witness 800. Gicheru and Bett are alleged to have offered or paid these witnesses between 500,000 Kenyan shillings (about USD4,580 at current exchange rates) and five million Kenyan shillings (about USD45,800). Gicheru and Bett are alleged to have done this between April – September 2013.

The arrest warrant does not identify the witnesses as prosecution witnesses or whether they testified in any trial. The pseudonyms of five of them, however, match the pseudonyms of five witnesses who testified during the trial of Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang. In April 2016, Trial Chamber V(a) terminated the case in a 2-1 judgment and vacated the charges against Ruto and Sang.

The majority said that they terminated proceedings at the close of the prosecution case because it had broken down and the evidence was too weak for the trial to continue. The majority, Judges Chile Eboe-Osuji and Robert Fremr, said one reason for the collapse of the prosecution’s case was witness interference and a hostile environment. They, however, said that neither Ruto nor Sang were involved in the alleged witness interference but they did benefit from it.

On Friday last week, Gicheru made his first appearance before the ICC, two days after Dutch authorities handed him over to the court. During Friday’s court appearance Gicheru took the never-done-before step, at the ICC that is, of representing himself. Gicheru, who has been a lawyer for more than 20 years in Kenya, said he may decide to appoint a lawyer to represent him as pre-trial proceedings continue.

Senior prosecutor Anton Steynberg expressed concern on Friday about Gicheru’s decision to represent himself even though he had left open the option of appointing a lawyer to represent him as the case progressed.

Steynberg said he was concerned because, “in particular I am not sure that the suspect (Mr. Gicheru) fully appreciates the enormity and challenge of pre-trial proceedings. And also, the issues of dealing with disclosure. My request (is) that Your Honor may advise Mr. Gicheru of the importance of appointing counsel.”

Judge Alapini-Gansou on Friday said that instead of holding confirmation of charges hearings she would be receiving written submissions from the prosecution and defense on whether the case against Gicheru should proceed to trial. This is also what the Single Judge of Pre-Trial Chamber II decided in November 2013 when determining the procedure to be followed in the bribery case against Jean-Pierre Bemba and four others.

Judge Alapini-Gansou gave the prosecution up to February 12, 2021, to file the Document Containing the Charges (DCC) and their list of evidence. The DCC gives details of the evidence the prosecution has to back up the charges against a suspect, in this case Gicheru. The judge gave the defense up to February 26, 2021 to file any evidence it may choose to present.

The judge said the prosecution and the defense should file their submissions on whether Gicheru’s case should proceed to trial by March 5, 2021. Then prosecution would have up to March 22, 2021 to file any response to the defense’s submissions and up to March 29, 2021 to file any response to the prosecution’s submissions.

On Friday last week, Steynberg and Gicheru spoke on the issue of interim release for Gicheru. What they said was closed to the public. During the public part of the hearing, Steynberg and Gicheru both agreed that Gicheru’s case should be separated from Bett’s case because Bett remains at large. Judge Alapini-Gansou asked them to file written submissions on the issue.

The pre-trial phase of the case against Gicheru is conducted by Pre-Trial Chamber A, made up of a Single Judge, Reine Adélaïde Sophie Alapini-Gansou. This is in line with changes made in February 2016 to the Regulation 66 of the Regulations of the Court and Rule 165 of the Rules of Evidence and Procedure to have single judge chambers oversee any Article 70 cases. Article 70 of the Rome Statute, the founding law of the ICC, deals with offenses involving witness interference, intimidation or bribery.

The changes were made because until February 2016 a pre-trial chamber handling any case was usually made up of three judges. ICC judges proposed the changes after their 2013-2015 experience of trying former Congolese rebel leader Jean-Pierre Bemba and four others for their role in bribing defense witnesses.

For further details about the six witnesses Gicheru is alleged to have bribed or attempted to bribe, read an International Justice Monitor September 2015 three-part article about them. Here you can find part one, part two, and part three.

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