By GEORGE KEGORO
There is much confusion about what actually happened at the 14th Assembly of States Parties (ASP) regarding Kenyaâ€™s endeavour to ensure that Rule 68 of the Rules of Procedure and Evidence is not applied retrospectively in the case at the International Criminal Court (ICC) against Deputy President William Ruto and journalist Joshua arap Sang.
Kenya went to the Assembly with two demands.
First, that Rule 68, which allows the use of recanted evidence, be suspended in relation to the case against the Deputy President.
This demand was based on Kenyaâ€™s assertion that assurances had been made during the 12th Assembly in 2013, when the rule was amended, that it would not be applied retrospectively on the Kenyan cases.
The second demand was for the appointment of an independent panel of jurists to investigate allegations that there had been misconduct by the Office of the Prosecutor in the investigation of the Kenyan cases.
On the first issue, Kenya expected a resolution by the Assembly stating that Rule 68 would not be applied to the Kenyan cases.
Pursuit of such a resolution, however, failed on the day that the issue came up for debate before the Assembly.
While Kenya had hoped for support from the other 33 African state parties to the Rome Statute, only Uganda spoke in Kenyaâ€™s support.
All the other African countries chose to remain silent during the debate, while non-African countries opposed the demands.
Kenya was badly isolated.
Further, it transpired that the parliaments of Mali and Cote dâ€™Ivoire had sent petitions to the bureau â€” the ASPâ€™s executive committee â€” opposing the listing of Kenyaâ€™s items in the agenda of the Assembly, which meant that the unified African position that Kenya had projected was only an illusion.
AN AUTONOMOUS BODY
Ultimately, what Kenya got out of the Assembly was consensus by members that language would be included in the report of its proceedings, as opposed to a resolution, that Rule 68 does not apply retrospectively.
In ordinary-speak, what Kenya got was a concession that the minutes of the 14th Assembly would show that the minutes of the 12th Assembly had decided that Rule 68 would not apply retrospectively.
Since there was no dispute that the minutes of the 12th Assembly, in fact, said this, and since the body of the rule also provided this, Kenya was fighting over nothing.
During the week, there was a long stalemate resulting from Kenyaâ€™s demand for a resolution.
The bureau rejected the possibility of a resolution and was only prepared to allow a statement in the record of proceedings.
Thus, Kenya failed in its intention that Rule 68 be suspended, and in the further intention that there should be a formal resolution to this effect, or to any other effect, touching on the rule.
Instead, the Assembly in essence noted Kenyaâ€™s interpretation in its proceedings.
In practical terms, this was a vacuous outcome for Kenya because Rule 68 itself makes a qualified declaration that it will not apply retrospectively.
A number of countries that were concerned about any negative effect that might result from Kenyaâ€™s insistence that the proceedings reflect its view on Rule 68, then also insisted that their own reservations should be officially recorded.
On behalf of 34 other countries, Canada expressed the view that the record should reflect that the ICC was an independent court body and free from political interference.
Liechtenstein, Switzerland and Austria insisted that the Assembly must preserve the integrity of the Rome Statute.
Kenya also failed in its demands for appointment of a panel of jurists to investigate the Prosecutor.
There was concern that this was Kenyaâ€™s attempt to gain access to information about witnesses with a view to tampering with them.
Again, the Assembly only agreed to reflect Kenyaâ€™s concerns in its proceedings.
Kenya engaged in remarkable arm-twisting during the two weeks that the Assembly lasted.
Having lost during the plenary debate, Kenya created its own new chances for re-debating the issue in the second week.
With the option of the Assembly now shut, Kenya opened a new frontier of engagement in the new week, by initiating an attempt to have the substance of its concerns included in the omnibus resolution of the Assembly.
The â€œomnibus resolutionâ€ is a wide-ranging general resolution that the Assembly passes each year, as a high-level affirmation of continuing commitment to the ideals behind the Rome Statute.
Kenya now wanted the working group on the omnibus resolution to also include a paragraph to the effect that Rule 68 would not apply retrospectively.
During Mondayâ€™s open meeting of the bureau, there was much hostility towards Kenya, with several bureau members objecting to the fact that Kenya was pursuing two tracks for one issue.
With the path to the omnibus resolution blocked, Kenya was confined to negotiating within the bureau, where a number of members took the view that Kenya could not get from the bureau what it had failed to get from the Assembly.
With the bureau adamant, Kenya was forced to downscale its demands and, several times, provided drafting that might be acceptable to the bureau.
Kenya also downscaled its demands regarding the form in which whatever outcome it desired would be reflected.
Originally, Kenya wanted a suspension of Rule 68 but then climbed down to demanding a stand-alone resolution, before further climbing down to seeking inclusion in the omnibus resolution.
With that possibility also blocked, Kenya now negotiated for the inclusion of its language in the report of the proceedings of the Assembly.
THE INSIDE STORY
Kenya tried several other tactics, including a side event, to further explain its case.
At the event, Kenya made a well-articulated statement on the reasons why it was seeking a decision on Rule 68.
A representative of the prosecutorâ€™s office replied that the issues Kenya had raised in the session were a replica of arguments that the African Union and Rutoâ€™s defence team had made in his case in court, and which was pending a decision of the judges.
There are only snippets of information about what actually happened behind the closed doors of the bureau.
At one point, Kenya stormed out of a meeting of the bureau.
Throughout the negotiation, Kenya maintained its threat to pull out of the ICC if it did not get what it wanted.
On Thursday, Kenya informed bureau members that it would withdraw from the ICC and that the Kenyan Cabinet was meeting in an hour to implement the decision of Parliament to withdraw.
Kenya also threatened that it would report to the AU in January, a threat that Foreign Affairs minister Amina Mohammed had already made during the open debate at the Assembly.
Three other African countries, Uganda, Burundi and Namibia, are said to have expressed readiness to join Kenyaâ€™s walkout.
To increase its leverage, Kenya also started putting roadblocks on the negotiation of the omnibus resolution by objecting to almost everything proposed and thus delaying consensus.
In private, Kenyan MPs, frustrated by the obstacles Kenya was meeting, also maintained threats that they would use their influence to ensure that the government did not award contracts to countries that had opposed its efforts at the Assembly.