WAMBUGU: Kenya won at ASP14, media should stop misleading Kenyans

By Ngunjiri Wambugu

The 14^th session of the Assembly of State Parties to the Rome Statute ended last week. Since then there has been intense and very confusing debate on whether Kenya ‘won’ or ‘lost’ on the issue of Rule 68. (I assume by now everyone knows that this is the rule that deals with how and when recanted evidence can be used).

The media has been caught up in this confusion. Anyone reading news features and commentaries on Kenya’s performance during ASP14 is most probably being left more confused than informed. The key problem is that journalists are reporting what opinion shapers are saying about Kenya’s performance at The Hague, rather than researching and stating the facts of what actually happened, and why.

For example I have seen several news items, based on comments from some Kenyan NGO members, explaining Kenya failed to get Rule 68 amended, reversed or suspended. However the fact is that Kenya did NOT want Rule 68 amended, reversed or suspended.

As Foreign Affairs Cabinet Secretary Amina Mohamed explained to the Assembly; “The first request (to the ASP) is a reaffirmation of the legislative intent of the amendments to Rule 68 as agreed in 2013 and as reflected in our record at the AU; that amendments to Rule 68 cannot be applied retroactively to situations that commenced before 27th November 2013.”

Kenya simply wanted a discussion by the Assembly on the legislative intent of amendments to Rule 68 made during ASP 12 two years ago, in November 2013.

Kenya also faced claims that it sought to bring matters that were subjudice to this ASP. This was the argument that drove European member states to resist the Kenyan agenda. Kenya’s response to this was that a precedent had already been set in 2013 where issues had been introduced, discussed and resolutions passed, which directly affected active pending proceedings before the Court. No claims of subjudice or interference with the Court’s independence had been made then; so there was no justification to any such claims being made now.

Kenya also quoted an opinion from the court itself on this issue. Judge Eboe Osuji while addressing the Prosecutor’s challenge to the ASP’s legislative powers in a related matter had stated, in part: “Examples abound in domestic legislative practice where gaps in Statute law were subsequently filled by the legislature following subsequent events that exposed the gaps. Judges will do their best in good faith to fill gaps through reasonable construction but it remains the prerogative of the legislature to fill any gaps they see a need to fill regardless of the interpretations offered by judges.”

Kenya was, therefore, arguing that even the Court itself recognized that the ASP could discuss and decide matters before the Court, if and when circumstances demanded it.

There has also been the argument that Kenya wasted resources on a matter that relates to the personal problems of William Ruto and Joshua Sang. However, Ruto and Sang cannot speak at The ASP because they are not member states.

However, as two Kenyan citizens before the ICC they have the right to expect their country to defend them if and when the ICC applies amendments passed by the ASP that go against basic principles of justice. This is a fundamental right that Kenya as a state owes not just to Ruto and Sang, but to each and every Kenyan who should find themselves in similar or related circumstances. I personally expect that should some foreign institution ever apply laws that are unfair, Kenya, and my fellow Kenyans, will stand up for me. This is an obligation that every state owes each of its citizens, whatever their status.

The counter argument to this has been that the right place for Kenya to take its complaints was the Court, not the ASP. However, Kenya is not a party to the Ruto, Sang case and could only ask to appear in Court as amicus curie – a friend of the Court. Kenya did that.

However, the court decided it was not interested in having such a relationship with Kenya. Kenya, therefore, did not even have the option of going to Court.

So Kenya went to ASP14 and got her issues discussed despite great effort to make sure this did not happen. Kenya got the assembly to agree that ASP12 never intended for the amendments to Rule 68 to be applied retroactively.

This decision is now part of the ASP President’s report on ASP14, and supports the resolution on Rule 68 that was made by ASP12 in 2013. This is all that Kenya wanted at ASP14. They got it.

How anyone can then genuinely argue that Kenya failed at ASP14 completely baffles me!

Ngunjiri is a Director of Change Associates, a Political Consultancy