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CS Foreign Affairs Amina Mohammedaddressing
the media at the ICC Assembly of
State Parties
(ASP) meeting at The Hague,
Netherlands yesterday
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THE Assembly of State Parties has now approved three amendments to the ICC rules affecting the cases of President Uhuru Kenyatta and Deputy President William Ruto.The ASP ended yesterday and allowed an amendment to Rule 68 that will accept prior recorded evidence.
Kenya successfully lobbied the ASP delegates for an insertion to rule 134 that will allow Uhuru and Ruto to be represented by their lawyers and be away from their trials, if the trial court agrees. Rule 100 has also been replaced by a new rule to allow a change of venue for the trial.
The United States welcomed the amendments saying that they will protect the rights of both defendants and victims and ensure that the trials continue without delay.
"We have taken seriously Kenyan concerns about the ongoing trial proceedings. The situation the ICC is confronting in the Kenya cases is a new one. The ICC has never before tried a defendant who is also a sitting head-of-state and who has appeared voluntarily in Court," the US representative to the UN, Samantha Power, said.
Cabinet Secretary for Foreign Affairs Amina Mohammed thanked the ASP delegates for approving the amendments."It was through the spirit of give and take, and we are happy that these new rules will help to strengthen operations of the ICC," she told the delegates.
"The ICC has been telling us that our president and his deputy are mere suspects at the court and should be treated as such. Not anymore after this amendments," said Amina told a press conference in The Hague."We have achieved all that we came to achieve," Amina added.
The amendment to Rule 68 concerned prior recorded evidence. The ICC Chief Prosecutor had applied for the testimony of witnesses not present in court to be allowed into evidence.
Defence lawyers in the Ruto case objected but the rule was changed to allow the admission of such testimony, except in any of the cases currently before the court.
ICC Chief Prosecutor Fatou Bensouda will not be allowed testimony from absent witnesses. Rule 134 deals with the presence of an accused person during trial.
The new insertion means that Uhuru and Ruto can be excused from being present in court by pleading they have “extraordinary public duties.”
The amended rule states, "an accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial chamber to be excused and to be represented by counsel only. The request must specify that thee the accused explicitly waives the right to be present at trial.” The excusal is not automatic as either Uhuru and Ruto will have to apply to be excused.
The court will then consider the request “expeditiously” and the decision “shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time."
Ordinary persons such as radio journalist Joshua arap Sang can still make a formal application for excusal which the court can grant if it is satisfied that there are exceptional circumstances.
Rule 100 deals with the place of proceedings. The rule was replaced and now states that “the chamber may at any time after the initiation of an investigation may proprio motu or at the request of the prosecutor or the defence, decide to make a recommendation changing the place where the chamber sits." The ICC trials could therefore be moved to Nairobi or any other place.
Amina met with ICC Assembly of State Parties president Tiina Intelmann to discuss holding a special meeting in early 2014 to further amend the Rome Statute.
Article 27 of the Rome Statute deals with immunity and considers all to be equal before the court. Kenya wants sitting heads of state to be exempted from being tried at the ICC.
During the assembly and break-out meetings, some delegatres argued that such an amendment would entrench impunity and undermine the ICC. MPs attending the ASP have welcomed the decision to amend the ICC rules.
Justice and Legal Affairs Committee chairman Samwel Chepkonga says Uhuru and Ruto will now be able to perform their duties as the ICC cases proceed at the Hague in their absence.
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