CHANGE OF GUARD

Ruto's lawyer Karim Khan to be sworn in as ICC prosecutor

Kenyan top activists in an awkward position as they had strongly opposed Khan's candidature

In Summary

• Ruto was never acquitted.

• Bensouda promised Ruto case could be resuscitated should relevant evidence emerge.

Defence lawyer Katwa Kigen, Deputy President William Ruto and defence lawyer Karim Khan at the ICC in the Netherlands
Defence lawyer Katwa Kigen, Deputy President William Ruto and defence lawyer Karim Khan at the ICC in the Netherlands

Deputy President William Ruto’s lawyer Karim Khan is set to be sworn in as the prosecutor of the International Criminal Court as Gambian-born Fatou Bensouda retires from The Hague.

Khan will take his oath of office on Wednesday next week, leaving African Civil Society players, including top Kenyan activists in an awkward position.

The civil society groups had strongly opposed Khan’s candidature for the top job, citing his conduct in the Kenyan cases.

They also said the ongoing witness tampering case against lawyer Paul Gicheru in which Ruto is adversely mentioned makes Khan unsuitable candidate.

However, despite their protestation, state parties went ahead and elected Khan in February.

After a four-month transition, ICC has announced that Khan is set to begin his nine-year tenure.

Bensouda who took over from Luis Moreno Ocampo is retiring from the global court. 

“Khan will officially assume the post of the ICC Prosecutor on 16 June 2021,” the ICC announced.

In his oath, Khan will have to swear that he will exercise his powers faithfully and impartially and protect the confidentiality of investigations.

"I solemnly undertake that I will perform my duties and exercise my powers as Prosecutor of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions,” his oath seen by the Star reads.

Ruto was never acquitted.

However, his charges were withdrawn because witnesses recanted their testimony. Bensouda promised Ruto case could be resuscitated should relevant evidence emerge.

Kenyan civil society players were a darling to previous ICC prosecutors and were central in the gathering of evidence against the Ocampo six.

In their opposition to Khan, the civil society organisations, mostly drawn from Kenya, highlight Khan’s actions – or inaction – after the death Meshack Yebei who was a key defence witness.

Yebei went missing from his home in Turbo, Uasin Gishu, on December 14, 2014. His mutilated body was found in a game park, 40km away at Tsavo National Park.

“When the mutilated and tortured body of Yebei was found in March 2015, Khan remained silent on the matter and appeared to have dropped his public demands for an investigation. Yebei’s family has asked why Khan did not raise the alarm when Yebei first disappeared,” the rights groups asked in a statement.

“To date, Khan has not spoken publicly about the need for the Kenyan government to carry out an investigation into the death of Yebei, his witness, despite the former ICC Registrar’s expression of willingness to assist the Kenyan authorities with its investigations regarding  Yebei’s death.”

The organisations opposed to Khan’s candidacy include the Africa Centre for Open Governance (Kenya), the Kenya Human Rights Commission (KHRC), the Kenyan Section of the International Commission of Jurists (ICJ-Kenya) and the Kenya National Victims and Survivors’ Network.

They argued that the ongoing case against Gicheru could compel Khan to recuse himself from the case if elected prosecutions boss.

“This case is extremely important for the ICC in terms of setting a precedent for those who attempt to bribe or interfere with witnesses. Khan, if elected as ICC Prosecutor, would have to recuse himself from this important case as well as any future trial proceedings in the Ruto and [Joshua] Sang case,” they stated

In response to the accusations, Khan said he took all the necessary measures to ensure Yebei was safe. The measures included referring him to the ICC-Victim and Witness Unit (ICC-VWU)—the organ within the ICC registry tasked with providing protective measures, security, counselling and assistance to witnesses.

“I am not able to disclose the source of alleged threats against Yebei that grounded my request for his protection, save to say I did everything ethically within my power to ensure Yebei and his family were safe.

"The responsibility to physically protect, relocate or support witnesses does not fall upon an individual counsel under the Rome Statute regime. Rather, it falls on the independent ICC-VWU once a witness is referred or issues highlighted to them by counsel or other persons," Khan said.