Sunday Nation
Date: 29.11.2015
Page 19
Article size: 372 cm2
ColumnCM: 82.66
AVE: 178560.0
Allowing amendments to Rule 68
was a grave injustice on the accused
Apart from the historic
Papal visit to Kenya, the
discussion by the ICC's
Assembly of State parties of
the now famous "Rule 68"
dominated the headlines this
past week. From the start of
the meeting early in the week,
it was evident that the stakes
were high and the daggers
were drawn. Kenya sent what
was evidently the largest ever,
high­powered delegation to
the conference. Initially, there
were serious challenges to the
addition of the Rule 68 debate
on the agenda, but last minute
intense lobbying by the country's
diplomatic bureaucrats paid off
despite opposition from pow­
erful Western states and civil
society organisations.
What is this Rule 68 that has
caused so much controversy, and
in the process, one may say, gen­
erated more heat than light?
The story goes back to Novem­
ber 2013 when, in its session, the
ASP at the behest of the ICC
prosecutor and judges amended
the then Rule 68 of the ICC's
Rules of Procedure and Evidence
to allow for admission of prior
recorded testimony — includ­
ing testimony of unavailable
witnesses and witnesses who
might have recanted their testi­
mony on the basis of (alleged)
interference.
The ordinary accepted practice
in any court is that witnesses
must appear in person and be
subjected to cross­examination
to ascertain the truthfulness
of their accounts. Given the
requirement becomes even more to prove any undertakings
I was, therefore, taken aback
compelling, and thus effective regarding the non­retroactive by the hostility that I witnessed
cross­examination becomes a application of the amendments at The Hague from civil society
protected invaluable tool in the to the Kenyan cases, it was organisations towards Kenya's
hands of an accused.
perfectly in order for Kenya to efforts to clarify the intention
It was, therefore, not sur­ approach the ASP at the earliest of the ASP in its amendment
prising that Kenya mounted opportunity to seek the neces­ of Rule 68. Of course, I can
strenuous opposition to the Rule sary clarification.
understand that it is this same
The manner in which Rule civil society that constructed the
68 amendments, only giving in
when the ASP resolved, after 68 was amended and subse­ Kenyan cases from quicksand
consultations with the court, quently applied to the Kenyan and it must be a painstaking
cases was extra­ordinary and experience watching those cases
that the amendments would
unprecedented. It was a viola­ tumble down so effortlessly over
not be applied retroactively to
tion of any known principle of
ongoing trials, including the criminal law and all available the years. But for anyone to sup­
Kenyan cases. But no sooner international conventions on port the outright illegality that
retroactive application of Rule 68
had the ink with which Rule
the rights of accused persons. amendments represents, is sim­
68 was printed dried, than the
For instance, Article 7.1 of ply hypocritical, ludicrous and
prosecutor successfully applied
the European Convention on lifts absurdity to a totally new
to the court to have several prior­
Human Rights contains ex­ level. The notion that there could
written and recanted statements
press, unequivocal prohibition be two sets of legal norms, one
admitted in support of the case
against retroactive legislation for the Europeans and another,
against Deputy President Wil­
in criminal law. The European less progressive, for Africans, is
liam Ruto and radio journalist
Joshua arap Sang. In its decision Court of Justice has consistently even more startling.
When history is finally written
to admit the evidence, the court held that retroactive application
about the Rule 68 amendments
reasoned, quite unconvincingly, of criminal laws "is not to be tol­
that admission of the recanted erated". This includes alteration and the attempt to apply them
testimonies did not occasion of the rules of evidence in order retroactively, one fact will stand
out; the target of the said amend­
any detriment to the accused to make conviction for a crime
and that there was no evidence likelier than it would have been ments was a backdoor, illegal and
bad faith attempt to salvage the
of any understanding by the ASP before the alteration. Article 1 of
collapsing Kenyan cases in fla­
that the Rule would not apply to the United States constitution
grant violation of the rule of law
the Kenyan cases.
expressly prohibits retro­active
and the principles that govern
The Government of Kenya was
application of the criminal law criminal trials in all civilised
evidently aggrieved by what ap­ while the American Declara­
jurisdictions. And although the
peared to be blatant reneging on
ASP has finally clarified the
tion of the Rights and Duties of
clear and binding undertakings
non­retroactive effect of the
Man at article 26 provides for
accepted in good faith and given
the right to be tried in accord­ amendments, a grave injustice
by those who, in the first place,
ance with pre­existing law. The was committed by allowing the
initiated the amendments.
Arab Charter on Human Rights amendments in the first place.
Kenya's attempt to appear
as amicus curiae (friend of the stipulates that in a criminal trial, THE LEGAL NORM
court) in the proceedings leading
to the admission of the state­
ments was rejected. In view of
extra­legal intrigues and politi­
cal sideshows that characterise the court's reasoning that there
was no evidence on any record
international criminal trials, this
the law most favourable to the
defendant should be applied.
I am informed that Kenyan law
also strictly prohibits retroactive
application of the criminal law. I
Global overview
of criminal law
would be shocked if it did not!
European Convention on
Human Rights: Article 7.1
contains express, unequivocal retro­active application of the should be applied.
criminal law.
prohibition against retroac­
Kenyan law: It strictly prohib­
tive legislation in criminal law. American Declaration of the its retroactive application of
the criminal law.
European Court of Justice:
Rights and Duties of Man:
It has consistently held that
Article 26 provides for the
retroactive application of
criminal laws "is not to be
tolerated".
right to be tried in accord­
ance with pre­existing law.
Arab Charter on Human
United States Constitution:
Rights: It stipulates that in
Article 1 expressly prohibits
a criminal trial, the law most
favourable to the defendant
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