ICC gives Kenya two weeks to seal Gicheru fate

Wednesday, January 6th, 2021 00:00 |
Lawyer Paul Gicheru during a past appearance before The Hague court. Photo/PD/file

The decision whether lawyer Paul Gicheru will secure a conditional release from the International Criminal Court (ICC) custody now lies in the hands of the Kenya government.

 This is after the court gave the government two weeks to decide whether it would fully cooperate and implement conditions set by the ICC before releasing Gicheru.

 Judge Reine Adelaide Sophie Alapine-Gensou, in a ruling dated December 31, 2020, said the government must commit its willingness and ability to facilitate Gicheru to attend court sessions at The Hague whenever required.

 “For these reasons, the chamber hereby invites the Republic of Kenya to provide the observations specified in paragraph 16 of the present order by no later than January 20, 2021,” Judge Alapine-Gensou ordered.

 Among the conditions,  ICC requires the government to give a commitment that 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; he must not engage in certain professional activities and that he must not directly or indirectly contact victims or witnesses.

 The court also wants the Kenya government to guarantee that it will ensure Gicheru resides at a particular address as specified by the Pre-Trial Chamber and must respond when summoned by an authority or qualified person designated by the Pre-TrialChamber.

 The government’s failure to cooperate with the court or respond within the specified period will mean that Gicheru may not be released conditionally and could spend the entire period of his trial in ICC custody. 

Interim freedom

The ICC had issued warrants of arrest against Gicheru and his co-accused Philip Bett on allegations of tampering with witnesses.

The lawyer surrendered to the court late last year but Bett’s whereabouts remain unknown.

 Yesterday, Gicheru’s lawyer John Khaminiwa pleaded with the Kenya government to reconsider its position on the matter and cooperate with the Court to secure his client’s interim freedom.

 “The matter now lies in the hands of the Kenya government. We have our fingers crossed that the government will re-evaluate her position and agree to cooperate.

Otherwise, Gicheru risks being detained in the Netherlands until the end of the trial,” Khaminiwa told the People Daily.

 Another option for Gicheru could be if another country that is a State Party to the Rome Statute volunteers to accommodate him and comply with the conditions given by the court for his interim release.​​​​​​

 In his ruling, Judge Alapine-Gensou dismissed arguments by Kenya’s Attorney General Paul Kihara Kariuki that Gicheru had gone against “a binding decision” of the High Court of November 16, 2017, that had frozen the ICC’s arrest warrant against him and his co-accused Bett, on allegations of tampering with witnesses.

 “Moreover, the Chamber notes that, following Mr Gicheru’s voluntary surrender to the court, he, in addition, communicated to the High Court of Kenya that he consents to be surrendered to the Court in accordance with the domestic legislation of Kenya.

In view of these developments, the observations by Kenya no longer reflect the current state of affairs in relation to the Interim Release Request,” the judge ruled.

 In his letter dated November 24, 2020, Kariuki had argued that 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 AG told the court that Kenya could only cooperate if Gicheru notified the court of his surrender.

 “In view of the foregoing, and by dint of the existing High Court order as mentioned herein above, Kenya observes that it may not, at this point in time, be able to accord the court the assistance contemplated in rule 119 (I) of the Court’s Rules of Procedure and Evidence, unless the said order is lifted or otherwise varied,” Kariuki had argued.

 The judge concurred with the prosecutor’s observations made on December 4, 2020, that the High Court decision upon which Kenya relied on in its argument, misapprehends the admissibility regime applicable to article 70 offences.

Rendered irrelevant

 The prosecutor had also argued that the High Court order had been rendered irrelevant by Gicheru’s decision to voluntarily travel “to the seat of the Court on his own accord and voluntarily surrender”.

 Furthermore, the prosecutor had informed the court that the terms of the court order did not constitute a bar to Kenya’s enforcement of any of the conditions of interim release envisaged in Rule 119 of the Rules of Procedure and Evidence.

 And since Gicheru had already communicated his consent to surrender in compliance with section 41 of Kenya’s International Crimes Act, which should lead to the removal of any perceived impediment to the enforcement of the conditions of his interim release, the AG’s arguments had been overtaken by events.

 “However, in the view of the prosecutor, ‘to the extent that Kenya still regards the High Court decision as binding notwithstanding [Mr] Gicheru’s waiver’, Kenya ‘should provide reasons why the ex-parte decision should be reconsidered, or confirm that it accepts the ruling as authoritative,” Judge Alapine-Gensou observed.

 The judge further said that issues pertaining to the enforcement of conditions in relation to Gicheru’s interim release are distinct from issues related to surrender under Kenyan domestic law.

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