The death of lawyer Paul Gicheru has reawakened the ghosts of the 2007/2008 post-election violence and the International Criminal Court.
This is the latest death among several cases of persons of interest perishing in unclear circumstances and others living as fugitives.
The whereabouts of two Kenyans – journalist Walter Osapiri Barasa and Philip Kipkoech Bett alias "Kipseng'erya” – both wanted by The Hague-based International Criminal Court (ICC) for interfering with witnesses –remain unknown.
Though arrest warrants were issued by the ICC close to 10 years ago, the two Kenyans are yet to surrender to the authorities, and neither have they been extradited to the Netherlands to stand trial. However, they are still on the ICC’s radar.
Mr Barasa’s arrest warrant was unsealed on October 2, 2013 and Mr Bett’s on September 10, 2015.
The journalist is wanted for allegedly being criminally responsible for three counts of offences against the administration of justice consisting in corruptly influencing or attempting to corruptly influence three ICC witnesses regarding the Kenyan cases. He allegedly committed the offences in Kampala, Uganda.
Court papers indicate that he was the intermediary between the Office of the Prosecutor and Kenyan witnesses in the Kenya situation for the 2007/2008 post-election violence.
“The case remains in the pre-trial stage, pending the suspect’s arrest or voluntary appearance before the court. The ICC does not try individuals in their absence,” says the ICC on its website.
Mr Bett is wanted to face four counts and his case involves the charges against Mr Gicheru – corruptly influencing witnesses regarding cases from the situation in Kenya.
On December 11, 2020, ICC Pre-Trial Chamber A, composed of single Judge Reine Adélaïde Sophie Alapini-Gansou, severed the two cases against Mr Gicheru and Mr Bett after the former surrendered.
“Until Mr Bett is arrested and transferred to the seat of the court in The Hague, the case will remain in the pre-trial stage,” said the court.
Former ICC Prosecutor Fatou Bensouda told the chamber that severing the charges was “necessary and advisable, in particular, to safeguard Mr Gicheru’s right to a fair and expeditious trial… Mr Bett is still at large and his whereabouts are unknown. I am also unaware of any intention on his part to surrender to the court."
In November 2017 the High Court in Kenya stopped the extradition of the suspects to The Hague-based court.
The request for their arrest was transmitted to the Cabinet secretary in the Ministry of Interior for execution, in accordance with Article 89 of the Rome Statute.
The Cabinet secretary forwarded the request together with the accompanying documents to the High Court of Kenya, under cover of a letter dated October 9, 2013.
Learning of the impending arrest, Mr Bett and Mr Barasa petitioned the court to stop their extradition. They had also sought an order to compel the Inspector General of Police to provide them with security and protection against arrest by ICC agents.
Mr Gicheru, Mr Bett, and Mr Barasa were among 15 other suspects from various countries wanted by the court for criminal trial.
Mr Gicheru and Mr Bett were wanted for the crime of corruptly influencing six prosecution witnesses.
Mr Barasa was accused of trying to bribe a person he thought was an ICC prosecution witness in the case against President William Ruto.
During a seminar on arrests at the ICC headquarters in The Hague, Ms Bensouda said the court’s judicial machinery is likely to be frustrated and held in abeyance unless persons sought by the ICC are arrested and appear before the court.
“High-level political commitment and consistent diplomatic coordination between states and other actors is needed to address the arrest challenge. If (arrests) are left unaddressed, we will have negligible impact on specific or general deterrence and prevention of the world’s gravest crimes,” she said.
The former prosecutor added that ICC arrest warrants must not be cast aside as mere inconveniences in inter and intra-state politics, or traded away in the service of political expediency.
"From the moment the court’s judges issue an arrest warrant, responsibility for its execution falls on states parties, as the court's executive arm, alongside any other states that may be under an obligation to cooperate. Impunity and instability are closely interrelated. When an alleged perpetrator of Rome Statute crimes remains at large, he or she may continue to commit crimes,” stated Ms Bensouda.
She called for action, not only through vocal support and public statements, but also at the operational level.
“States parties and the Assembly of States Parties must take appropriate action in response to the court’s findings of non-compliance on failure to arrest and surrender ICC suspects. My Office will continue to pursue non-compliance findings under Article 87(7) of Rome Statute,” she added.