A senior prosecutor told Kenya’s High Court that the country is unwilling to prosecute two Kenyans wanted by the International Criminal Court (ICC) in relation to bribery allegations against them.

Senior Assistant Director of Public Prosecutions Victor Mule told the court on Thursday that in such a situation the ICC can exercise its jurisdiction as a court of last resort. He argued this was possible because the ICC’s founding law, the Rome Statute, has force of law in Kenya.

Mule said this during submissions before Judge Luka Kimaru on an application the Director of Public Prosecutions made to execute an arrest warrant for Paul Gicheru and Philip Kipkoech Bett. The ICC issued an arrest warrant for them in March 2015 alleging they have bribed or tried to bribe six prosecution witnesses so that they withdraw as witnesses in an ICC case.

On Thursday, Judge Kimaru asked Mule a series of questions on why Kenya was not prosecuting Gicheru and Bett and instead applying to execute the ICC warrant for the two.

“Neither the Attorney General nor the Director of Public Prosecutions nor the Cabinet Secretary has taken up the prosecution of the respondents (Gicheru and Bett),” Mule told the court. Mule then said that in such a situation Article 17 of the Rome Statute applies.

“That if the government of Kenya is unwilling, therefore, as a court of last resort the ICC comes in,” said Mule.

Judge Kimaru asked what would happen if Kenya chose to prosecute Gicheru and Bett.

“The State is supposed to make a request to the ICC for a waiver of jurisdiction,” answered Mule, adding that this would be under Rule 162 of the ICC Rules of Procedure and Evidence.

“No such request has been made,” Mule continued.

“Why?” asked Judge Kimaru.

“Because the State is unwilling to prosecute,” Mule replied.

“So, you are telling me the State has abdicated its responsibility?” asked Judge Kimaru.

“It is not that the State has abdicated its responsibility. It has not made a decision (to prosecute),” answered Mule.

“So, you are throwing them under the bus?” asked Judge Kimaru.

“I’ll not take it that way. This is a case where we cannot have the two proceedings in both the ICC and the national jurisdiction,” answered Mule.

Judge Kimaru then commented that the United States and European countries do not easily submit to international proceedings.

“They jealously guard their national jurisdiction. They do not surrender to international jurisdiction. But here is a case whereby the DPP is very willing to surrender national jurisdiction,” said Judge Kimaru. “I would find that situation extremely alarming.”

“What we have is an election. An election this case will not be investigated and prosecuted (in the national jurisdiction). An election has been done,” responded Mule.

In the arrest warrant the ICC issued against Gicheru and Bett, they are alleged to have bribed or attempted to bribe six prosecution witnesses, offering each between 500,000 shillings (about US $4,800 at current exchange rates) and five million shillings (about US $48,000) to withdraw as witnesses. These bribery allegations are offenses under Article 70 of the Rome Statute.

The ICC issued, under seal, the arrest warrant against them on March 10, 2015. The court lifted the seal on September 10, 2015 after the ICC prosecutor informed the court that the Kenyan police arrested Gicheru and Bett on July 30, 2015. Some of the pseudonyms of the witnesses given in the arrest warrant for Gicheru and Bett correspond with those witnesses who testified during the trial of Deputy President William Samoei Ruto and Joshua arap Sang, which was terminated in April 2016.

On Thursday, Mule submitted that the argument made by lawyers for Gicheru and Bett about the fair trial rights of their clients was wrong.

“The Rome Statute has got the most elaborate procedures in the world for ensuring fair trial,” Mule said. He then listed where the Rome Statute provides for fair trial rights. Mule went on to list other documents of the ICC, such as, the Rules of Procedure and Evidence, Elements of Crimes and the Rules of the Court to further his point that the ICC has elaborate provisions for fair trial rights.

Mule said their rights were also safeguarded when Gicheru and Bett were summoned by the Kenyan police and brought to court.

“The court granted them bail as of right. We have never contested the terms and there has never been objection (to the bail),” Mule told the court. He did not state when Gicheru and Bett were summoned or granted bail.

Lillian Obwo, also from the Office of the Directorate of Public Prosecutions, made submissions on an arrest warrant issued by High Court Judge Jessie Lesiit when the judge was presented with the ICC’s request for the arrest of Gicheru and Bett. Lawyers for the two have applied to Kimaru to quash that warrant.

“In terms of the quality of the warrant of arrest that was given by Justice Lesiit, we are submitting that, my Lord, Justice Lesiit exercised her jurisdiction and that jurisdiction cannot be interfered with by this court,” said Obwo. She then added that Judges Lesiit and Kimaru are both High Court judges and the lawyers for Gicheru and Bett can appeal the warrant at the Court of Appeal.

She did not give details of when the arrest order issued by Judge Lesiit was issued. It is possible that is the order that led to the arrest of Gicheru and Bett on July 30, 2015 that the ICC prosecutor informed Pre-Trial Chamber II about at the time.

Obwo said what was left for Judge Kimaru to do was, “look at the eligibility of surrender and look at whether the applicants have breached the respondents’ rights.”

Continuing her submissions, Obwo said she would play devil’s advocate.

“Should this court quash the warrant issued by Justice Lesiit, the warrant is still in existence at the ICC. If I were the respondents, I would be more worried by the existence of the warrant of the ICC because that warrant is still in existence,” said Obwo.

When the hearing began on Thursday, Senior State Counsel Christopher Siro responded, on behalf of the Attorney General, to a submission made by a lawyer for Gicheru that the Attorney General was biased and should be an amicus curiae in the proceedings.

Siro said Mungai had not objected when the Attorney General applied to be admitted as amicus curiae in the hearing and thus he was late in raising an objection.

“We have not taken sides. Our main aim before this court is to demonstrate the principles which the court ought to take in the determination before it,” said Siro.

After all parties concluded their submissions on Thursday, Judge Kimaru said he would make his ruling on the applications before him on September 20.