The decision of the Appeals Chamber that Rule 68 shall not apply in the ongoing trial against William Ruto and Joshua Sang before the International Criminal Court represents the final position of the law as understood by the judges of the ICC and must therefore be accepted by all who respect the rule of law.

However, the decision leaves in its wake a number of questions that must be raised which we hope will be addressed in the coming days.

The decision was justified by the judges essentially on the basis of non-retroactivity.

However, the application of Rule 68 was also the subject of significant political canvassing including by the African Union which made it the subject of a formal resolution at the Summit of Heads of State and follow-up diplomacy aimed at having it discussed at the 14th Assembly of States Parties of the Rome Statute in The Hague in November 2015. The ASP rightfully resisted demands by the Kenyan state for a resolution that would have made interpretation of Rule 68 the subject of a political decision, rather than a decision of the judges. For the judges’ decision was pending before the Appeals Chamber as the ASP was taking place. That the ASP had to mount this resistance demonstrates the undue political pressure placed on the judges and represents a disturbing inability of states parties to prevent the use of the ASP to undermine the ICC’s independence.

The judges no doubt decided the appeal on Rule 68 on the basis of the law. However, the context in which they did so, marked by the vilification of the ICC and threats of withdrawal from the Rome Statute by the Kenyan state and the AU, has created the unfortunate appearance that the Appeals Chamber bowed to pressure from the Kenyan state and the AU. This is especially so given that the AU was allowed to participate in the proceedings before the Appeals Chamber as amicus curiae.

That the Appeals Chamber allowed the AU to participate in its proceedings while it was, with the Kenyan state, leading denunciation of the ICC in political platforms, is a show of weakness on the part of the Appeals Chamber and perpetuates the false belief that there are no red lines as concerns acceptable conduct in relation to the ICC outside of its proceedings.

The statutes of international tribunals create offences against the administration of justice which are similar to the offence of contempt of court which almost all national jurisdictions recognise. There is no doubt that if the conduct of the Kenyan state and the AU occurred in relation to domestic proceedings, they would amount to the offence of scandalising the Court and would constitute contempt.

There is therefore need for a discussion by the ASP on the limits of acceptable critique of the conduct of the ICC and the limits of the political activities of state parties in relation to the ICC.

In addition, the decision of the Appeals Chamber is a reminder that there is still no way to address the serious interference with witnesses at the heart of the attempt by the Trial Chamber to invoke Rule 68.

In 2013, the Trial Chamber issued an arrest warrant against journalist Walter Baraza, on charges of witness tampering. In 2015, the court issued a second arrest warrant for witness tampering against lawyer Paul Gicheru and Philip Kipkoech Bett, noting an “element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings.”

It is three years since the first warrant was issued. Both warrants have remained unexecuted. Attempts have been made arrest Baraza but these have not borne fruit. In addition to the two arrest warrants, an Eldoret journalist, Meshack Yebei, whom Ruto’s defence claimed was their witness, was murdered in late 2014 but no investigation has followed and, strangely, Ruto’s defence has not pressed for action concerning the murder of its alleged witness.

There is no excuse for the continued failure by the Kenyan state to hand over Baraza, Gicheru and Bett to the ICC in accordance with the warrants of arrest. Kenya must take action. Its position that domestic law does not allow for their arrest is only an excuse. If Kenya does not cooperate, the Prosecutor should consider commencing proceedings under Article 87(7) for the ICC to make a formal finding of non-cooperation against Kenya.