ICC releases Kenyan lawyer Paul Gicheru but with conditions

Lawyer Paul Gicheru, who on November 2, 2020, surrendered to the International Criminal Court (ICC) in The Hague, has been conditionally released from the court’s custody and will travel back to Kenya.

In conditionally releasing Mr Gicheru pending his confirmation of charges, the ICC pre-trial chamber has however imposed strict conditions on the lawyer including a requirement for financial security and limitations on his travel and where he resides.

Mr Gicheru is alleged to have interfered with witnesses who had been lined up to testify against Deputy President William Ruto and journalist Joshua Sang in the 2007 post-election violence cases.

As per the terms of his conditional release, Mr Gicheru will be required to provide financial security of Sh1 million to the ICC Registrar in the form of cash or bank order and he shall be required to comply “fully with all orders issued in this case and surrender himself immediately to the relevant authorities if required by the Chamber.”

Mr Gicheru will also have to appear before the Pre-trial Chamber from time to time as required by the court. He has also been cautioned against obstructing or endangering the investigation or the court proceedings “and shall not engage in any activities, directly or indirectly, that are prohibited under Article 70 of the Statute.”  

Travel restrictions

The conditions also limit Mr Gicheru’s movement once he is released from custody. For instance, he will be required to reside in Kenya at an address(es) that he has provided to the court “for the duration of the proceedings when not present in the Netherlands for the purposes of court proceedings” unless otherwise authorised in advance by the Chamber.

He has also been asked to provide the Registrar with copies of all passports, visas, identity documents, and any other travel documents issued to him. Moreover, his international travel has been limited to only two countries: the Netherlands and a second one which has been redacted from the decision that came out yesterday. 

Even travel to the pre-approved list of countries would have to be cleared by the ICC at least seven days before he travels. A request by Mr Gicheru to travel to the list of pre-approved countries shall detail the purpose of the trip, the dates of travel, itinerary, the address(es) where he will reside during the trip and the means by which he may be contacted, except when travelling to the seat of the Court at its request.

In order to travel to a country not on the approved list, the decision requires Mr Gicheru to give the court a 14-day notice. Such a request, the decision states, can only granted if there is a good cause shown.

He will also be required to report once a week to the ICC Registrar, including through use of video conferencing technology; and he will also have to provide the Registrar with all mobile and other telephone numbers and shall ensure that at least one of his mobile telephone numbers remains active and with sufficient credit to be reachable at any time.

Witnesses

The conditions also bar him from contacting prosecution witnesses or victims in the case except through his lawyer and within strict protocols.

“In the event that Mr Gicheru would fail to comply with any of the aforementioned conditions restricting liberty, the Chamber may declare the financial security provided by Mr Gicheru forfeit to the Court, issue a warrant of arrest in respect of Mr Gicheru at the request of the Prosecutor or on its own initiative pursuant to rule 119(4) of the Rules, and/or issue any other order it deems relevant in response to a failure to comply with these conditions,” Judge Reine Adélaïde Sophie Alapini-Gansou said. 

Mr Gicheru’s conditional release follows Kenya’s confirmation that it is “in principle, willing to cooperate with the Court with regard to this matter.” The prosecutor had also not opposed Mr Gicheru’s request for interim release.

Kenya's demand

Attorney General Kihara Kariuki had on January 18 asked the court to disclose the conditions of Mr Gicheru’s interim release in advance before it commits to cooperate with the ICC.

But in the decision, the judge said that the impediments of Mr Gicheru’s interim release to Kenya having been removed, there is no need to meet Kenya’s demand to know the conditions beforehand.

“…Kenya need not agree to the specific conditions restricting liberty. This is because the conditions that Kenya may have to enforce do not exceed those set forth in rule 119 of the Rules. Kenya has indicated that ‘it is, in principle, willing to cooperate with the Court with regard to this matter’, and, as a State Party, it has a duty to cooperate with the Court under Article 86 of the Statute. Should Kenya consider that it is prevented from enforcing a specific condition restricting liberty, it may consult with the Court pursuant to Article 97 of the Statute,” the judge stated.

Mr Gicheru surrendered to the ICC on November 2, 2020, after nearly five years as a fugitive following his indictment for alleged witness tampering in the case against Deputy President William Ruto. His surrender caught many in Kenya and at the ICC by surprise.

The ICC prosecutor accuses him of corruptly influencing six witnesses who were set to testify against Dr Ruto by paying bribes and drawing affidavits they used to recant their testimony to the ICC.