a legal expert answers 4 questions following the death of a key lawyer
Kenyan lawyer Paul Gicheru, one of those charged with interfering with witnesses in the case involving President William Ruto at the International Criminal Court (ICC), was recently found dead at his home in Nairobi. He was awaiting the verdict of the ICC.
The ICC intervened in Kenya after allegations of crimes against humanity committed during the 2007/2008 post-election violence were filed. Since then, business has dragged on. In 2011, the court’s chief prosecutor, Luis Moreno-Ocampo, issued subpoenas against six prominent Kenyan figures known as Ocampo Six. The list included Ruto and former President Uhuru Kenyatta. Both traveled to The Hague to defend themselves against the allegations, Kenyatta making history as the first sitting head of state to appear before the ICC. The case against Kenyatta collapsed in 2014, and that against Ruto collapsed in 2016, mainly due to insufficient evidence.
International criminal law expert Tonny Raymond Kirabira answers four key questions about cases.
What was the significance of Paul Gicheru’s case?
Gicheru and another Kenyan lawyer, Philip Kipkoech Bett, were charged by the ICC prosecutor – and arrest warrants were issued against them in 2015 – for offenses against the administration of justice. Specifically, they were accused of corruptly influencing prosecution witnesses in order to defeat the case against Ruto and radio presenter Joshua Arap Sang.
Gicheru surrendered to the ICC in November 2020. Since then, he has been on trial in The Hague. On February 1, 2021, he was released from ICC custody and returned to Kenya, but under special conditions that restricted his freedom. Until his death in Nairobi, he was still subject to strict restrictions on movement and his ability to communicate the merits of his case at the ICC to the public.
The court has yet to render its decision.
A key dimension in the Gicheru case was Kenya’s initially uncooperative approach to the ICC. In November 2017, the High Court of Kenya lifted ICC arrest warrants for Gicheru and Betton the grounds that Kenya had not been consulted and that the country had the capacity to pursue cases domestically.
Even when Gicheru surrendered voluntarily, the Kenyan government still considered the High Court Order 2017 who lifted his warrant as valid, implying that the ICC had no jurisdiction to try him.
Amid the legal dilemma, the ICC recognized Kenya’s inevitable role in the case, when Gicheru was released from ICC custody in early 2021. He was due to return to Kenya and return to The Hague when the hearing of his case. However, it was after Gicheru signed a consent to surrender, as required by Section 41 of Kenya’s International Crimes Act, that the government cooperated with the ICC to enforce the terms of his provisional release for a period of time. his stay in Kenya.
Overall, Kenya has demonstrated its willingness to cooperate with the ICC by ensuring that Gicheru abides by the Court’s conditions restricting his liberty while in Kenya.
Gicheru’s death raises concerns about the ICC’s future engagement with Kenya, given that the cases against the journalist Walter Osapiri Barasa and Bett are always open.
The ICC needs Kenya’s cooperation and support for the arrest and transfer of suspects to The Hague, and the protection of its staff and witnesses involved in the cases.
Before his death, Gicheru’s case served to fix Kenya adversarial relationship with the ICC, in accordance with the Kenyan International Crimes Act and the Rome Statute. Likewise, Kenya remains under an obligation to execute the request for the arrest and surrender of Bett and any other suspects indicted by the ICC.
What does the case tell us about the weaknesses of the ICC?
The case of Gicheru is a clear demonstration that the The ICC’s ability to deter international crimes and end impunity largely depends on two elements.
First, the nature of his intervention. For example, it is much easier to investigate and gather the necessary evidence in state referrals, compared to situations where the prosecutor intervenes on his own initiative or at the request of the UN Security Council.
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The second element concerns the profile of the suspects. Gicheru’s case had shown that trying mid-level officials rather than sitting heads of state offered better prospects for cooperation between states.
What does Gicheru’s death mean for Kenyan cases in The Hague?
To be clear, the Gicheru case has no direct connection to previous cases against Ruto and others. The administration of justice charges against Gicheru fall far short of the core crimes that Ruto and others have been charged with – crimes against humanity.
The fact that there are no victims involved in the Gicheru case also means that the ICC verdict would have no tangible impact on the court’s operations in Kenya.
Nonetheless, Gicheru’s conviction would vindicate earlier claims that the Kenyan cases have been frustrated by the political eliteas the prosecutor asserts.
It is important to note that the ICC’s involvement with Kenya is not necessarily over. The prosecutor can bring new charges in the future when – and if – the necessary evidence is gathered. Ruto was not acquitted of the charges. What happened is that the court ended the case against him. This means that there may be future charges against him if the prosecutor finds the relevant evidence.
Likewise, the case against Kenyatta can be reopened if the prosecutor submits new evidence to the court.