Kenya: Luck Running Out for Lawyer Paul Gicheru at the ICC

20 January 2021

When lawyer Paul Gicheru surrendered to the Dutch police at The Hague, Netherlands, on November 2, 2020, he must have had one mission in mind: to clear his name at the International Criminal Court (ICC).

Two months later, his luck continues to run out, if the unfolding events at the court are anything to go by.

Mr Gicheru was a wanted man since March 2010 following allegations of tampering with witnesses in the 2007 post-election violence case against Deputy President William Ruto and radio host Joshua Sang.

Late Monday, the court issued an order that gave ICC Prosecutor Fatou Bensouda her first big win against the soft spoken, laid back public servant.

Incriminating evidence

After receiving submissions from both parties concerning five items belonging to Mr Gicheru that are under the custody of the court's registry, Judge Reine Alapini-Gansou gave Ms Bensouda the green light to analyse possessions believed to have potential incriminating evidence.

This new development came on the backdrop of his efforts to convince the court to release him as the case proceeds, since he is still in custody pending Kenya's commitment of cooperation with the court.

Through lawyer Michael Karnavas, Mr Gicheru objected Ms Bensouda's request to have the items -- whose nature is yet to be made public -- analysed.

According to the judge, warrants of arrest against Mr Gicheru and his co-accused Philip Bett had demanded appropriate measures on body search and scrutiny of premises where they may be arrested, and any such offices utilised by them.

Seizure of evidence

The warrants also required seizure and transmission to the court any relevant evidence that may be found during the search.

"When considered against the threshold of 'reasonable grounds', the (items) may be considered to have been used in, connected with, or to provide evidence of the offences for which the Warrants of Arrest have been issued," ruled Judge Alapini-Gansou.

"The chamber considers that it is not necessary to, as requested by the defence, order the prosecutor to provide further particulars and grant leave (to the defence) to file a supplemental submission."

Ultimately, she dismissed Mr Gicheru's argument that such an order would result to intrusion of privacy.

"It remains the prosecutor's responsibility to conduct this analysis in accordance with the requirements arising from the Court's legal texts and, if necessary, the defence may raise any issue in connection with this matter in the subsequent stages of the proceedings," said the judge.

Separated items

The ruling stemmed from a request by the court's registry for guidance on five items that were separated from Mr Gicheru's other belongings upon his surrender to the Dutch authorities in November last year.

According to documents before the court, a Dutch police inspector who accompanied Mr Gicheru to ICC handed over his personal belongings to the court's registry.

The possessions included five unidentified items that had been placed in a separate transparent plastic bag by police.

The registry explained that the five items -- including personal effects such as clothes -- did not fall under the category of items that a suspect can retain.

In her ruling, the judge declined Mr Gicheru's arguments that the prosecutor's request to access the items was not sufficiently substantiated.

The judge said when the prosecutor's request is considered against the threshold of 'reasonable grounds' arising from the Request for cooperation, the unnamed items may be considered to have been used in, connected with, or to provide evidence of the offences for which the Warrants of Arrest have been issued.

"The Defence argument that the Prosecutor must establish 'compelling facts or evidence warranting an intrusion into the (sic) Mr Gicheru's [redacted]' misstates the applicable threshold for the seizure of evidence and is, accordingly, dismissed," ruled the Chamber.

Rome Statute

In addition, the Chamber considered that it is not necessary for the prosecutor to, as argued by the defence, make a request pursuant to Article 56 of the Rome Statute in order to access the personal belongings of Mr Gicheru.

"The Request for Cooperation, which is the legal basis for the Prosecutor's Request, was issued pursuant to articles 54(1)(a) and 57(3)(a) of the Statute. Therefore, it would be superfluous to require an additional legal basis for the Prosecutor's analysis of the [redacted]," said the judge.

She added: "It remains the Prosecutor's responsibility to conduct this analysis in accordance with the requirements arising from the Court's legal texts and, if necessary, the Defence may raise any issue in connection with this matter in the subsequent stages of the proceedings."

Interim release

Meanwhile, Ms Bensouda has said she is not opposed to Mr Gicheru's interim release from detention but on condition that his mobile phone is retained at the registry.

She also said that his health condition would justify his release.

The prosecutor also asked the chamber to order that Mr Gicheru appear in person before the court at The Hague on a specific date, and then from time to time, to ensure his continued cooperation and to provide the opportunity to enforce the conditions of his release, if required.

Noting the chamber has already decided that the confirmation proceedings will be in writing, the Prosecution observed that if the charges are confirmed, the next time Mr Gicheru may appear in person before the Chamber could be at the opening statements of his trial, several months from now.

"In these circumstances, it would be prudent to order Gicheru to appear in person before the Chamber at the seat of the Court on a specified date, and thereafter from time to time or at important moments of the case, for instance, when the confirmation decision under article 61(7) is issued," said the prosecutor.

This, she said, would ensure the ongoing cooperation of the suspect and his continued willingness to subject himself to the jurisdiction of the court.

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