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Was ASP’s adoption of text on recanted evidence a win for Kenya? #Rule68

As the rest of the country was still dazzled by the Pope’s visit and his message of hope and show of humility, there was an important event happening a continent away but of great significance to the country as we strive to achieve some of those ideals that Pope Francis spoke about during his three-day visit to Kenya.

The Assembly of State Parties (ASP) was making a decision regarding Kenya’s submission to amend  Rule 68 of procedures and evidence.

Kenya’s amendment sought to have the the earlier amendment to the rule done in November 2013 applied  in a non-retroactive manner.

In a layman’s language, we were asking the ASP to refuse the use of recanted statements in the ongoing cases at the ICC involving Deputy President William Ruto and radio journalist Joshua arap Sang’ and to some extent against President Uhuru Kenyatta in case the case against him will be opened in the future.

Rule 68

Immediately the ASP plenary agreed to adopt the changes – albeit with a caviet that it will be up to the ICC Appeals Chamber to decide on whether the Prosecutor; Fatou Bensouda was justified to use recanted statements by witnesses in her case against the two Kenyans, Kenyan media were already celebrating a win for Ruto and Sang’.

In an article that appeared largely as a PR statement for the Foreign Affairs CS Amina Abdallah, Capital FM claimed victory for Kenya.

“Kenya wins as ASP adopts text on ICC recanted evidence” 


Was this really a win for Kenya?

Constitutional Lawyer Gitobu Imanyara thinks otherwise:

The seasoned lawyer says that it will still be up to the courts to determine whether to use or not to use the recanted evidence.

Prof Makau Mutua, a former Dean at the SUNY Buffalo Law School agrees with Imanyara on this.

Dennis Itumbi, a Director of Communications at Statehouse though not a legal expert thinks this was a straight win for the government.

While another lawyer Ahmed Nasir Abdulahi thinks Kenya put in a redundant request.

The “Legalese” aside, was this really a win for Kenya?

The government has spent millions of shillings pushing for these amendments to the evidence rules of the ICC. 32 members of parliament, foreign affairs ministry staff, the Attorney General, the Director of Public Prosecution among other dignitaries and their aides were being fed and housed at The Hague and even paid allowances using tax payers money.

The big question therefore is, was this in Kenya’s interest or those of the accused?

The trial against the two has started, why waste state resources in stalling it while the accused can argue for themselves in court?

While we are employing the principal of “innocence till proven guilty,” let us not forget that these two people are being accused of murdering Kenyans, forceful evictions, rape and other criminal activities. Who speaks for the victims of these atrocities.

Why haven’t we seen the government use all in its power in seeking justice for the more than 1,000 people who died in the 2007/8 Post-Election Violence (PEV).

The government threatened to leave the ICC if her demands were not met, why don’t we see such threats for justice for the victims?

Why are we not seeing efforts made at getting justice for the women who were raped, people who were forcefully evicted?

When the Kenyan media calls this a win for Kenya, do they mean that William Ruto, Joshua arap Sang’ (and maybe Uhuru Kenyatta) are more Kenyans than those who lost their lives, were raped, were evicted, lost property?

This was definitely not a win for Kenya but an attempt to subvert the justice process against the victims of PEV.

Follow me on Twitter @IamOminde



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