International Criminal Court (ICC) Judge Chile Eboe-Osuji has told off the Government of Kenya for turning to the principle of sovereignty “at every convenient opportunity, with the evident aim of frightening judges”.
In a no-holds-barred criticism, Mr Eboe-Osuji also told Attorney-General Githu Muigai that his views as chief legal adviser to the government were in no way superior to other lawyers on matters of Kenyan laws.
Mr Eboe-Osuji is the presiding judge of Trial Chamber V(a) in the Hague, which is handling the case linked to the 2007/2008 post-election violence against Deputy President William Ruto and former radio journalist Joshua Sang.
The views are contained in Mr Eboe-Osuji’s partly dissenting opinion against granting Mr Ruto and Mr Sang leave to jointly appeal the April 17 majority ruling compelling eight witnesses to testify.
Judges Robert Fremr and Olga Herrera assented to their request during the hearing in May 23.
The eight witnesses — only identified by numbers 15, 16, 336, 397, 516, 524, 495 and 323 — withdrew from testifying against Mr Ruto and Mr Sang but ICC prosecutor Fatou Bensouda wants them compelled to testify.
Mr Osuji said the principle of sovereignty is an important notion that should be applied within the rule of law.
“It is partly for that reason that Mr Ruto’s and Mr Kenyatta’s requests from continuous presence at trial were granted by the same judges who granted the prosecution’s request for summonses, so that they may discharge their important functions as the topmost leaders of the country while their trials proceed in this court,” he said in his opinion.
But he added: “All care must be taken to avoid reducing, in effect, the august notion of sovereignty of states to a hackneyed bogeyman, to be conjured up at every convenient opportunity, with the evident aim of frightening judges of an international criminal court, as one would frighten small children.”
Mr Muigai, in his request to be allowed to make observations as amicus curiae (friend of the court), had argued that the April 17 ruling disregarded the sovereignty of Kenya.
The AG had further argued that the request by Trial Chamber V(a) that the government compels the eight witnesses to testify places the country in a position not anticipated by the signatories to the Rome Statute.
But Mr Eboe-Osuji held that the reason for the existence of the ICC was out of the current international legal order that rejects the notion that a government of a state and its officials can do as they pleased with the human rights of their citizens.
“The plea of sovereignty in such an unfortunate sense was an old bogeyman that was interred long ago in the graveyard of international legal history, following the Second World War,” he said.
“The epitaph is engraved in the language of obligations erga omnes (obligations that states have towards the international community as a whole) and burnished in the terms of ‘R2P’— responsibility to protect that the international community no longer leaves to the exclusive domain of the states whose populations are in the need of the protection.”
Mr Muigai had argued that failure to prefer his views amounted to a violation of the sovereignty of Kenya.
“It is a difficult argument to accept. It has no known substantive basis in law or practice,” Mr Eboe-Osuji said in his opinion.
The judge argued that if the AG’s position was the case, then no one would get justice against the government.
However, the majority decision allowed Mr Ruto and Mr Sang to appeal on two issues. First, whether a chamber had the power to compel the testimony of witnesses. Secondly, whether Kenya as a state party to the Rome Statute is under an obligation to cooperate with the court to serve summonses and assist in compelling the appearance of witnesses subject to a subpoena.
The parties will now make their submissions on the matter before the Appeals Chamber of the ICC.