By Valentine Obara

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International Criminal Court (ICC) Prosecutor Karim Khan has recused himself from leading the case facing Kenyan lawyer Paul Gicheru.

Khan, who took over from Fatou Bensouda two weeks ago, had represented Kenya's Deputy President William Ruto in the 2017 post-election violence case at the Hague-based court.

Deputy President William Ruto with his lawyer Karim Khan outside the ICC on October 4, 2013.

Deputy President William Ruto (left) accompanied by his wife Rachel, is welcomed by lawyer Karim Khan to the International Criminal Court (ICC) at The Hague at a past Status Conference.

While confirming his recusal, Judge Reine Alapini-Gansou, who is handling Mr Gicheru’s case, said it will henceforth be led by Deputy Prosecutor James Stewart.

Gicheru is facing allegations of interfering with key witnesses who were relied upon by the prosecution in Dr Ruto’s case, which was shelved. 

Kenyan lawyer Paul Gicheru when he made his first appearance before the ICC on November 6, 2020, before Judge Reine Adélaïde Sophie Alapini-Gansou of Pre-Trial Chamber A.

In its submission, the office of the prosecutor told the chamber that Mr Khan’s decision was informed by article 42(7) of the Rome Statute which states that a prosecutor or his deputy may be disqualified from a case if “their impartiality might reasonably be doubted on any ground”.

“On 28 June 2021, the Office of the Prosecutor advised the Chamber that the current Prosecutor has recused himself from the proceedings in this case, pursuant to article 42(7) of the Statute. It further explained that the Deputy Prosecutor will perform all the acts that the Prosecutor would have to carry out in the present case,” the judge stated.

No access

According to the court, Khan will now be denied access to any confidential filings regarding the case and he has been barred from involvement in any discussion or decision on a substantial or administrative level related to the case.

“Further, the Chamber considers that the Deputy Prosecutor will replace the Prosecutor and perform any of his functions for the purposes of this case,” said Gansou.

Before her retirement, Bensouda had indicated that Khan would not get involved in any case that is related to those he had been involved in before as a lawyer.

In a statement, she had said: “Khan has informed me that he will recuse himself from any case, where a conflict of interest may be perceived to arise from his former representation of suspects or accused persons. He will have practical measures implemented to protect against any such risk, and the public can have complete confidence in the good faith and efficacy of this process, and Mr Khan’s unyielding commitment to his duties and responsibilities under the Rome Statute.”

It has emerged that Khan also recused himself from a case concerning violence in Darfur, Sudan, against Abdallah Banda who has a warrant of arrest against him.

The British lawyer emerged among key figures in the cases involving Kenya’s post-election violence, owing to his eloquence and assertiveness in defending his client. The cases were filed against six suspects that included President Uhuru Kenyatta, DP Ruto and journalist Joshua arap Sang.

Khan took over as ICC prosecutor at a time when the court is still receiving submissions from parties involved in Mr Gicheru’s case, which is at the confirmation of charges stage.

The confirmation of charges proceedings had stalled in May pending the swearing-in of a new prosecutor. It will determine whether or not there is sufficient evidence to conduct a trial.

In its submissions, the office of the prosecutor had alleged that Gicheru was part of a team that schemed to bribe witnesses so that they would withdraw their statements incriminating DP Ruto.

However, Gicheru has dismissed the allegations claiming the prosecution is relying on hearsay, hence the case should be not proceed to trial.