Kenya Remains Non-Committal On Co-Operating With ICC

22 January 2021

Kenya is demanding to know, beforehand, the conditions that might be placed on lawyer Paul Gicheru upon his interim release from the International Criminal Court custody before it commits to co-operate with The Hague court in the matter.

Attorney-General Paul Kihara Kariuki, while responding to the court's order for further observations by Kenya on Mr Gicheru's request to be conditionally released as he awaits his trial, said that while Kenya is "in principle" ready to co-operate, Nairobi will only give its final word once the conditions for Mr Gicheru's release are known.

According to Mr Kariuki, any request by the ICC to Kenya must first be subjected to Kenyan laws as per Section 23 of the International Crimes Act, potentially giving a window for Kenya to reject certain conditions that might be imposed.

"Noting the contents of the foregoing provision of the Act (International Crimes Act), Kenya wishes to observe that while it is, in principle, willing to co-operate with the court with regard to this matter, Kenya's ability to enforce any specific conditions that the Chamber imposes would be determined only after Kenya has notice of those specific conditions with sufficient clarity, detail and scope," the Attorney-General wrote to the pre-trial chamber of the ICC currently seized of Mr Gicheru's case.

"As indicated hereinabove, Kenyan law requires that any requests for assistance be dealt with in accordance with the relevant procedure under the laws of Kenya. Therefore, an unequivocal and clear scope of the specific conditions for Mr Gicheru's release in order for Kenya to activate its domestic administrative and judicial procedures accordingly, prior to making any undertaking to the Chamber on its enforcement ability, is critically essential," Mr Kariuki added.

In its first order to Kenya to submit its observations, the ICC pre-trial chamber had mentioned some of the likely conditions Mr Gicheru would have to contend with if his request for interim release is granted, and which Kenya would be required to enforce.

They included a requirement that Mr Gicheru will not be allowed to travel outside Kenya without the explicit agreement of the Chamber; that he must not go to certain places or associate with certain persons as specified by the pre-trial Chamber; that he must not contact directly or indirectly victims or witnesses; that he must not engage in certain professional activities; that he must reside at a particular address as specified by the pre-trial Chamber; and that he must respond when summoned by an authority or a qualified person designated by the pre-trial Chamber.

This was the second time Kenya was submitting its observations in relation to Mr Gicheru's request to be released from the ICC custody in The Hague back to Kenya as he awaits his trial for alleged witness tampering.

Kenya had earlier indicated to the court that it would not co-operate because Mr Gicheru did not follow the law when he surrendered to the ICC. Back in November 2020, Mr Kariuki had told the ICC that Mr Gicheru went against "a binding decision" of the High Court of November 16, 2017 that had frozen the ICC's arrest warrants against the lawyer and his co-accused Philip Bett on allegations of witness tampering.

Moreover, the Attorney-General said then that Mr Gicheru had not complied with the International Crimes Act that required him to notify the High Court in Nairobi before he surrendered to the ICC. The Act domesticated the Rome Statute that establishes the ICC.

"In view of the foregoing, and by dint of the existing High Court order as mentioned hereinabove, Kenya observes that it may not, at this point in time, be able to accord the court the assistance contemplated in Rule 119(1) of the Court's Rules of Procedure and Evidence, unless the said order is lifted or otherwise varied," the Attorney-General states in the letter dated November 24.

In the intervening period, Mr Gicheru regularised his surrender by notifying the High Court and the Attorney-General of his decision.

"The Office of the Attorney-General of Kenya confirms receipt of the aforementioned documents," Mr Kariuki acknowledged Mr Gicheru's notification of his voluntary surrender.

The prosecution does not oppose Mr Gicheru's interim release but has been granted its request to access and analyse the contents of his mobile phone that was confiscated when he surrendered on November 2.

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