ASP 14: Kenya and South Africa requests explained

The Assembly of States Parties has accepted requests from Kenya and South Africa to debate several controversial topics at the Assembly related to ongoing proceedings at the International Criminal Court.


The Assembly of States Parties has accepted requests from Kenya and South Africa to debate several controversial topics at the Assembly related to ongoing proceedings at the International Criminal Court. Civil society is calling on ICC member states to protect the Court’s prosecutorial and judicial independence from political interference.

Supplementary agenda items?

The ASP is responsible for ICC laws and rules as well as management oversight.

According to rule 12 of the ASP’s Rules of Procedure, any state party to the Rome Statute, the Court itself or the ASP bureau may request the inclusion of supplementary items in the Assembly’s agenda.

Three requests, one by South Africa and two by Kenya, were accepted into the agenda of ASP 14 at the 11th hour before the Assembly opened on 18 November.

South Africa’s request

South Africa’s request pertains to the application and implementation of article 97 and article 98 of the Rome Statute (RS), the ICC’s founding treaty.

Article 97 says that a state party shall consult the Court to resolve problems which may impede or prevent it from executing cooperation requests – such as arresting persons wanted by the Court.

Article 98 RS excludes immunities for any persons, including for heads of state and senior government officials.

ICC judges have asked South African authorities to explain why they failed to arrest Sudanese President Omar al-Bashir while he visited the country in June 2015. Bashir is wanted by the ICC for alleged war crimes, crimes agansit humanitya and genocide in Darfur.

According to South Africa there is no clear procedure regarding the structuring of these consultations under Article 97.

South Africa has also requested to discuss the interpretation of article 98 RS, and its relationship with article 27 RS (also relating to no immunity).

Kenya’s requests

  1. Discussion on the application of amended Rule 68

At the 12th session of the ASP, at the request of Kenya, governments amended rule 68 of the ICC’s Rules of Procedure and Evidence (RPE) to allow for the admission of “prior recorded witness testimony” in the Court’s proceedings.

Thi year, the ICC prosecutor used this new rule to introduce the pre-recorded witness testimony in the ongoing trial of Kenyan Deputy President William Ruto and broadcaster Joshua Sang for allegedly orchestrating crimes against humanity during Kenya’s 2007-2008 post-election violence.

Once the trial had started, several witnesses refused to continue to participate and were eventually termed ‘hostile’ by ICC judges. The ICC prosecutor alleges that these witnesses were intimidated to withdraw, and has issued arrest warrants for two individuals suspected of witness tampering.

In its request for a supplementary agenda item at ASP 14, Kenya wants to discuss the “legislative intent”of rule 68 RPE. It has requested that the Assembly find that the rule cannot be applied retroactively to ICC investigations commenced before the 12th session of the ASP (when the rule came into force).

This retroactive use of rule 68 has been challenged by Ruto’s defense team, and is currently before the ICC Appeals Chamber.

  1. Discussion on the establishment of an ad hoc mechanism to audit the Prosecutors’ witness identification and recruitment processes

At the 8th session of the ASP, the Assembly established an Independent Oversight Mechanism (IOM). The IOM, in accordance with article 112(4) RS, is mandated to “provide for inspection, evaluation and investigation of the Court in order to enhance the Court’s efficiency and economy.”

Kenya has expressed its concern that the IOM is not yet operational. It has requested the Assembly to discuss the establishment of an ad hoc mechanism of five independent jurists to audit the ICC prosecutors’ witness identification and recruitment processes in the ICC Ruto/Sang trial.

190 members of the Kenyan parliament have signed a petition to highlight concerns on witness procurement in the Kenyan cases, more specifically in the case mentioned.

Defending the independence of the ICC

While the Coalition as a whole does not take position on these supplementary agenda items, the Coalition stresses that ICC member states must be cognizant that issues relating to their management oversight role do not infringe on issues which pertain to the judicial and prosecutorial competence of the Court and the independence of the prosecutor and judiciary.

Challenges to the cases before the ICC must be made before the judges and at all times in compliance with the Rome Statute system.

In the deliberations on the various issues before the ASP, no decision should be taken that undermines, or could be perceived to undermine, the judicial independence of the Court.

However, several Coalition members have taken strong positions on the additional agenda items.

So what is civil society saying?

In their Memorandum for the ASP 14, 30 African civil society organisations and international organisations with a presence in Africa expressed their deep concern “that South Africa’s proposal risks interference with ongoing judicial processes, and its concerns should instead be expressed through the pending litigation”. They also address that “Kenya  should be encouraged to wait for the conclusion of the appeal” as they “urge that States Parties resist the ASP becoming a platform where pending judicial matters are discussed.”

In its recommendations for the ASP 14, the International Federation for Human Rights (FIDH) states that “the latest requests to discuss matters relating to the Court’s handling of the Kenya cases as well as the Al­ Bashir case in a political forum raise serious concerns about attempts of interfere in judicial proceedings”.

FIDH President Karim Lahidji said that “it is of the utmost importance that States refrain from discussing purely judicial matters that are before the ICC, which would risk damaging the Court’s independence. States Parties should use every opportunity to defend the integrity of the Rome Statute throughout the ASP.”

FIDH and its member organizations in Kenya and Sudan, the Kenya Human Rights Commission (KHRC) and the African Centre for Justice and Peace Studies (ACJPS)said they are “deeply concerned by the proposals presented by the government of Kenya and South Africa relating to the Court’s handling of the Kenya cases as well as the Al-Bashir case. We emphasize that States should refrain from discussing judicial matters during the ASP, which is a purely political forum, as this could amount to attempting to politicise the Court`s judicial proceedings and to interfering with its judicial and prosecutorial independence.”

In its five recommendations for the ASP 14Amnesty International said that “while the Assembly has a clear mandate under Article 51 to consider amendments to the Rules of Procedure and Evidence, it should not engage in discussions that could amount to political interference with the Court” because this “threatens to undermine the judicial independence of the ICC”. Amnesty “opposes in the strongest terms South Africa’s proposal for the Assembly to provide a legal interpretation of Article 98 and its relationship with the Article 27.” Amnesty considers Kenya’s request to be “inconsistent with the independence of the Prosecutor” and could “potentially undermine the security of its procedures relating to witnesses”.

Parliamentarians Chile Costa Rica Dominican Republic, HondurasUruguay(members of the Parliamentarians for Global Action network) have signed declarations requesting their governments to set policies of protection of the independence of the Court in the ASP 2015.

George Kegoro, executive director of the Kenya Human Rights Commission, writesthat “Kenya intends to repeal the Rome Statute as a threat that if the Assembly of State Parties does not give Kenya its way with regard to the interpretation of Rule 68, the country will next withdraw its membership of the Rome Statute. […] There are a number of concerns with the plans to repeal the International Crimes Act. First, repealing the Act is an insult to victims of the post-election violence, and a statement that neither the ICC nor a local mechanism will ever be allowed to bring justice on their behalf. Secondly, laws are an insurance against eventualities. They anticipate and provide for as many situations as possible. Repealing the International Crimes Act is a statement that Parliament does not care for the country, so long as the personal interests of the Jubilee leaders are secured. Third, repealing the Act will not affect the Ruto case whose trial is already advanced. Whether or not the country repeals the International Crimes Act and ends its membership of the Rome Statute, this will not change the legal position that the Deputy President is liable for trial before the ICC. Fourthly, while the International Crimes Act was meant to define and facilitate the relationship with the ICC by providing for the management of practical matters, the Kenyan state has used the statute as a foil against the court.”

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