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What to expect after Gicheru's surrender to The Hague Court.

Paul Gicheru at his first appearance before the ICC. Photo Courtesy: ICC Website.

This article was first published in The Standard.

The unexpected surrender of lawyer Paul Gicheru to the Netherlands and subsequently to the custody of the International Criminal Court (ICC) early this week has raised several queries that are worth examining.

Questions abound as to Gicheru’s motivation to surrender to the ICC more than five-and-a-half years since the issuance of his warrant of arrest for six counts of allegedly corruptly influencing prosecution witnesses through bribery, promises of employment and other inducements in exchange for their withdrawal as witnesses and/or retraction of their original statements, which constitutes an offence against the administration of justice under Article 70(1)(c) of the Rome Statute.

Gicheru’s seemingly voluntary surrender is particularly intriguing given his fiery opposition to the late Interior Minister Joseph Nkaissery’s application, in May 2015 seeking a High Court order to execute the ICC’s arrest warrant. The High Court, through Justice Luka Kimaru, eventually lifted the warrant of arrest against Gicheru and Bett in November 2017, on grounds that the alleged offences ought to be tried in Kenya, and that the ICC’s failure to provide evidence forming the basis of the charges and warrant of arrest was an affront to the accused persons’ rights, including the right to a fair trial.

As such, Gicheru’s sudden turnaround may suggest that something is afoot. Perhaps Gicheru may have decided to set the record straight or clear his name; or, as some have argued, it might be part of a well-calculated political scheme intended to drive public perception on the possibility of the ICC reopening the terminated case against Deputy President William Ruto and Joshua arap Sang.

It is also not far-fetched to propose that Gicheru’s surrender may be a culmination of sustained engagement between Gicheru and the ICC prosecutor, in a bid to uncover the truth regarding witness interference and intimidation that dealt an ultimate blow to Ruto and Sang’s case in 2016. But whatever Gicheru’s motivations are, the proceedings will mirror other cases involving offences under the jurisdiction of the ICC, with very few procedural exceptions.

It is expected that the first order of business will be a preliminary hearing before the appointed judge in the Pre-Trial Chamber to ensure that the suspect understands the charges brought against him and his rights under the Rome Statute, including the right to apply for interim release pending trial, with or without conditions.

This will be followed by confirmation of charges, where the prosecutor will be required to support each charge with sufficient evidence to establish substantial grounds for the court to believe that Gicheru committed the alleged crimes.

Gicheru, through his self or court-appointed legal counsel, may object to the charges, challenge evidence presented by the prosecutor and present his own evidence. The Pre-Trial Chamber may determine whether or not to confirm all or some of the charges on the basis of documentary evidence, without the need for oral testimonies from witnesses.

If the Pre-Trial Chamber confirms the charges, Gicheru will be committed to trial at a public hearing at The Hague, unless the court decides to conduct a closed hearing in the interest of justice. At this point, Gicheru will be required to take a plea of guilty or not guilty.

If Gicheru pleads not guilty, the prosecution will have to prove the charges against him beyond reasonable doubt. If convicted, the court will be expected to sentence Gicheru to a term of imprisonment not exceeding five years, or a fine, or both.

The court may also order for forfeiture of proceeds, property and assets derived directly or indirectly from the offences on administration of justice committed by Gicheru, in addition to imprisonment or a fine, or both.

The trial stage of the proceedings will be particularly important given Gicheru’s seemingly voluntary surrender to the Court, which could signify his likely cooperation with the prosecutor.

The practice of plea bargaining, especially in cases involving offences of a less serious gravity — relative to crimes against humanity, genocide or war crimes — is increasingly commonly practiced and accepted in international tribunals as a means of unearthing additional truth and linkage evidence to pursue further accountability for grave crimes.

In return for cooperation with the prosecution in investigation of other cases, the charges against a defendant may be modified or he/she may receive a lesser sentence. It is plausible that Gicheru’s cooperation with the prosecutor may provide useful leads to support further investigations and uncover additional evidence that may assist the prosecution to determine the magnitude of witness intimidation and interference in the case against Ruto and Sang, and perhaps, begin to rebuild the case.

But this by no means provides a spontaneous lifeline to revive the terminated cases against Ruto and Sang. In any case, it is doubtful that the evidence from the testimony of witnesses that may be proven to have been tampered with would provide the kind of credible and solid evidence that is required to revive the cases.

Even assuming that there is potential for a plea agreement between Gicheru and the Office of the Prosecutor, the court is under an obligation to ensure that, if Gicheru pleads guilty, he will have taken the plea voluntarily and after sufficient consultation with his legal counsel, that he fully appreciates the nature and consequences of his admission of guilt, and that the plea is effectively supported by the facts of the case.

Moreover, the Rome Statute explicitly provides that the court will not be bound by such an agreement and must exercise its independent discretion in determining the charges and sentencing of an accused person.

- Christine Alai is an advocate specialised in human rights and international justice.

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