Kenya steps up war to suspend ICC 'Rule 68'

Wednesday November 18 2015

Kenya’s delegation to the Assembly of States Parties has vowed to ensure the controversial rule allowing use of recanted evidence at the International Criminal Court is debated.

Foreign Affairs Cabinet Secretary Amina Mohamed said protests by the ICC should be ignored.

Kenya maintains that the rule was not to be used in the case against its Deputy President William Ruto and journalist Joshua arap Sang, who are facing charges of crimes against humanity at the court.

Ms Mohamed spoke after chairing a meeting of the Kenya delegation and said the country also wants an audit into how the court sourced its witnesses in both cases.

Kenya’s two items have now been included in the agenda.

The meeting brings together countries that have ratified the Rome Statute, its financiers and the UN Security Council. It begins on Thursday at The Hague, Netherlands.


Ms Mohamed said Kenya’s position on the use of the rule (known as Rule 68) adopted during the 12th Assembly’s meeting has been violated after Prosecutor Fatou Bensouda was allowed to use recanted evidence by six witnesses. 

“We are here to restate that rule will not be applied to the case against the Deputy President and Sang. That was the agreement during the meeting in 2013,” Ms Mohamed said.


Mr Ruto’s lawyers protested against the rule in August, arguing it was detrimental to the survival of their client and have appealed for its reversal.

On Tuesday, Ms Mohamed said: “We have cooperated with the court and we expect that our concerns will be addressed.”

She was responding to revelations that court President Silvia Fernandez de Gurmendi, Ms Bensouda and Registrar Herman von Hebel had asked the States Parties to avoid adopting decisions that could erode the court’s independence.

The ICC said this in a letter on November 13 addressed to states assemblies President Sidiki Kaba.

While they agreed the assembly has powers to adopt amendments to the Rome Statute, the trio argued implementation and interpretation of rules lie with the court.

Kenya’s ambassador to the United Nations Macharia Kamau said the country would not be cowed in its push to have the rule discussed.

Mr Macharia said violations of the agreement by the ICC is undermining the principle under which the court was founded.

“Africa wants to fight impunity but  ICC should not undermine that commitment by violating agreements,” Mr Macharia observed.

In the Kenya's National Assembly, Majority Leader Aden Duale issued a statement questioning the assertion by the ICC prosecutor that Kenya should not be allowed to discuss the rule.

“We shall not allow the prosecutor to exploit us to correct her tanking case,” he added.