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.

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 ASP simply accepted the language requested by Kenya “affirming” the non -retroactive use of Rule 68 as amended by same ASP in 2012.

— Gitobu Imanyara (@GitobuImanyara) November 27, 2015

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.

Despite the bravado by the Jubilee team at The Hague the applicability of Rule 68 remains in the purview of ICC Appeals Chamber.

— Gitobu Imanyara (@GitobuImanyara) November 27, 2015

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

Fact: Kenya wanted Rule 68 suspended/declared inapplicable to Ruto. Fact: ASP declined Kenya’s request. Only judges can interpret Rule 68.

— Prof Makau Mutua (@makaumutua) November 27, 2015

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

Nothing left to Judges to decide @makaumutua #ASP14 agreed that the rule they passed in #ASP12 cannot apply to Ruto/Sang @HonAdenDuale

— Dennis Itumbi (@OleItumbi) November 26, 2015

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

@WehliyeMohamed 1. apparently Kenya’s request was a very low threshold saying “please reaffirm that rule 68 doesn’t apply retroactively”

— Ahmednasir Abdullahi (@ahmednasirlaw) November 26, 2015

@WehliyeMohamed …of rule 68. 3. It means the court will have the final say and kenya seems to have asked a redundant/superfluous question.

— Ahmednasir Abdullahi (@ahmednasirlaw) November 26, 2015

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?

Didn’t know Blackmail & Theatrics are also taught at the #KenyanDiplomaticSchool. Now I Know. #Rule68 #ASP14 #Gutted https://t.co/Vwp5vlhsQ8

— Philbert Aganyo (@Paganyo) November 26, 2015

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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