The Star (Nairobi)

7 June 2014

Kenya: Ruto Appeals Against Forced ICC Testimony

DEPUTY President William Ruto and Joshua arap Sang have formally appealed against a decision seeking to force witnesses to testify against them at the International Criminal Court.

In applications made on Thursday, Ruto and Sang said the two judges who made the decisions were wrong in stating that Kenya is obliged to force witnesses to testify.

They said that there is no Kenyan or international law can allow the decision to be implemented by Kenya as such a move violates the Kenyan constitution.

"No government should be required to act illegally and contrary to the Statute and, crucially, its own constitution," Ruto and Sang told the court through their lawyers.

Last month, the Trial Chamber V(a) judges granted a request by Prosecutor Fatou Bensouda that eight witnesses be forced to testify. One judge declined to approve the request arguing that the chamber was overstepping its mandate in allowing the prosecutor's request.

Bensouda had requested that the eight--Witness 15, Witness 16, Witness 336, Witness 397, Witness 516, Witness 524, Witness 495, and Witness 323--be forced to testify.

According to Bensouda, those eight witnesses are no longer cooperating or have informed the prosecution that they are no longer willing to testify.

Attorney General Githu Muigai is expected to file Kenya's observations next week after Bensouda, Ruto and Sang said they do not oppose the filing.

Ruto told the court that the prosecution should accept the government's offer to serve the summons on the witnesses and facilitate those who are willing to testify.

The Deputy President challenged the legality of the chamber's decision arguing that it violates Kenyan laws and the human rights of the specific individuals.

Ruto's lawyer Karim Khan said the court's decision creates a "coercive environment" and rejects the principle of voluntary appearance, thus, significantly engage issues of fairness.

Sang's lawyer Katwa Kigen said they want the appeal judges to determine whether the ICC is competent to issue a subpoena to compel a witness to appear and testify before it.

Sang argues that ICC is not competent to obligate a State Party to compel a witness to appear before it against his/her will. The former radio journalist said the trial judges did not adequately uphold their obligation to protect the physical and psychological health and well-being of witnesses.

He argues that the judges fail in this by compelling the witnesses testify against their will and abdicating responsibility to the Government of Kenya to ensure their safety.

In their ruling, the judges said that Kenya should communicate to the concerned witnesses the chamber's requirement of their attendance. "The Chamber request the Government of Kenya to facilitate, by way of compulsory measure as necessary, the appearance of the indicated witnesses for testimony before the Trial Chamber by video-link or at a location in Kenya and on such dates and times as the Prosecutor or the Registrar (as the case may be) shall indicate," the judges said. Kenya is also to make appropriate arrangements for the security of the indicated witnesses until they appear and complete their testimonies.

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