In Summary
  • Osuji gave a dissenting opinion
  • 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.
  • The parties will now make their submissions on the matter before the Appeals Chamber of the ICC.

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. 

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