Month: January 2019

ICC and Government of Georgia conclude Agreement on the Enforcement of Sentences

The International Criminal Court (“ICC” or “Court”) and the Government of Georgia have concluded an Agreement on the Enforcement of Sentences. Under the agreement, persons convicted by the ICC may serve their sentence of imprisonment in Georgia if so decided by the Court and accepted by the Government of Georgia. On 24 January 2019, Judge Robert Fremr, First Vice-President of the Court, and H.E. Ms Tea Tsulukiani, Minister of Justice of Georgia, signed the agreement at the Court’s premises.

The Rome Statute provides that sentences of imprisonment imposed by the ICC “shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons”.

Welcoming the Government of Georgia’s commitment and support for the Court in signing the Agreement, First Vice-President Fremr stated: “The active support of the States Parties is a fundamental precondition for the Court’s ability to carry out its mandate. In addition to obligatory cooperation under the Rome Statute, it is essential that all States Parties consider which forms of voluntary cooperation they may be able to offer to the Court”.

H.E. Ms Tea Tsulukiani, Minister of Justice of Georgia said that: “The signing of the Agreement on Enforcement of Sentences is clear manifestation of Georgia’s commitment to strengthen the ICC as a legal institution, by contributing to enforcing international justice. This agreement creates necessary legal infrastructure to place the ICC sentenced persons in the Georgian prisons and the Georgian penitentiary system would join the limited number of those designated by ICC for enforcing sentences as being of high standards. ”

Similar agreements on the enforcement of sentences are currently in force between the ICC and the governments of Argentina, Austria, Belgium, Denmark, Finland, Mali, Norway, Serbia, Sweden and the United Kingdom of Great Britain and Northern Ireland.

Patrice-Edouard Ngaïssona makes first appearance before the ICC

On 25 January 2019, Patrice-Edouard Ngaïssona appeared before Pre-Trial Chamber II of the International Criminal Court (“ICC” or “Court”), at the seat of the ICC in The Hague (The Netherlands).  Pre-Trial Chamber II is composed of Judge Antoine Kesia‐Mbe Mindua, Presiding, Judge Tomoko Akane and Judge Rosario Salvatore Aitala. The hearing was held in the presence of the Prosecutor and the Defence. Mr Ngaïssona was represented by his Counsel Mr Eric Plouvier. The Chamber verified the identity of the suspect, and ensured that he was clearly informed of the crimes he is alleged to have committed and of his rights under the Rome Statute of the ICC in a language he fully understands and speaks. The opening of the confirmation of charges hearing was scheduled for 18 June 2019.

The purpose of the confirmation of charges hearing is to determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. If the charges are confirmed, totally or partly, the case will be transferred to a Trial Chamber, which will conduct the subsequent phase of the proceedings: the trial.

Background: On 23 January 2019, Mr Ngaïssona was transferred to the ICC in The Hague, Netherlands, by the authorities of the French Republic pursuant to an ICC arrest warrant for crimes against humanity and war crimes allegedly committed in the Central African Republic. This transfer followed the completion of necessary national proceedings in France, where he was arrested on 12 December 2018.  

On 7 December 2018, ICC Pre-Trial Chamber II issued an arrest warrant for Patrice-Edouard Ngaïssona for war crimes and crimes against humanity allegedly committed in various locations in the CAR between at least 5 December 2013 and at least December 2014:

  • crimes against humanity: murder and attempted murder, extermination, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, persecution, enforced disappearance and other inhumane acts; and
  • war crimes: murder and attempted murder, torture, cruel treatment, mutilation, intentionally directing an attack against the civilian population, intentionally directing an attack against personnel, installations, material, units or vehicles involved in a humanitarian assistance, intentionally directing an attack against buildings dedicated to religion, pillaging , enlistment of children under the age of 15 years and their use to participate actively in hostilities , displacement of the civilian population and destroying or seizing the property of an adversary.

 

Outrage at Supreme Court over ‘hijab’ ruling misguided venting

The recent Kenya Supreme Court ruling on whether Muslim girls can wear the hijab in a Methodist Church-sponsored school has elicited sharp opinions.

But the outrage shows that many have rushed to condemn the court without having understood the decision.

This can be partly blamed on media misreporting of the judgment despite the Supreme Court issuing a two-page summary of it to help reporters capture it accurately.

The controversy started during the annual prize-giving day in June 2014, when the Isiolo County deputy governor requested St Paul’s Kiwanjani Day Mixed Secondary School to permit Muslim students to wear hijab and white trousers with their uniform.

Before the request was granted, the students started wearing hijab and, when asked to adhere to the school uniform, protested.

PETITION

After several meetings, the county director of education ordered the principal to permit Muslim students to wear hijab even though the stakeholders had voted not to allow it.

The principal was also transferred. The church then sued the official in a petition in the high court asking it to declare that permitting Muslim students to wear hijab would be discriminatory, unconstitutional and contrary to the school rules.

Mr Mohamed Fugicha, a parent of one of the girls, asked to be enjoined in the case as an interested party and the court agreed.

He then filed a replying affidavit, indicating that he would cross-petition the court for orders that Muslim students should be permitted to wear a limited form of the hijab.

When one is sued, he can file a cross petition, by which he raises his own case against the petitioner rather than simply responding to the case against him.

DISCRIMINATORY

That often raises issues that were not in the original petition, which is why courts require sufficient detail for the other side to respond.

After declaring that it was discriminatory to allow Muslim students to wear the hijab, the High Court also found that the cross petition did not comply with procedure and allowed the church’s petition. Mr Fugicha moved to the Court of Appeal.

The appellate court disagreed with High Court on the preliminary issue of whether the cross petition was properly before the court.

The judges said the Constitution and the rules no longer require such petitions to strictly follow procedure and the other parties were aware of it and had a fair opportunity to respond.

In the substantive dispute, it disagreed with the High Court.

The Supreme Court also had to deal first with the preliminary question of whether the cross petition had been raised properly at the High Court.

RULING

This is where the Supreme Court differed with the Court of Appeal.

Four of the five judges took the view that, since Mr Fugicha was only an interested party in the High Court petition, he had no right to file a cross petition and it did not meet the procedural rules.

The judges ruled that, in permitting the cross petition, the appellate court denied the other parties their right to a fair hearing.

It is solely on this point that the Supreme Court differed with the Court of Appeal.

However, the Supreme Court did not overturn the Court of Appeal decision, saying the latter was wrong in its decision over hijab — it did so owing to the appellate court’s failure to grant all parties a fair hearing. As such, reports that the Supreme Court gave schools the final say on their uniforms, which includes the power to ban hijab, are simply false.

ESCAPIST

Indeed, the Supreme Court said the hijab issue was an important question but that it would not address it until the matter had been properly raised and determined by the High Court and the Court of Appeal.

We should not be angry at the Supreme Court for allowing church-sponsored schools to ban hijab — it said no such thing.

Instead, we should criticise the apex court for elevating procedural technicalities above substantive issues — which goes against the Constitution as it demands that the Judiciary administers justice without undue regard to procedural technicalities.

It is unfortunate that the highest court in the land chose an escapist route, thereby wasting an opportunity to deal decisively with a hotly contested issue that threatens to divide Kenyans right in the middle.

Mr Ogutu teaches law at the University of Nairobi. kenogutu@uonbi.ac.ke

DPP to supply 20,000 files to NHIF suspects

NHIF PIC

From right: Mr Simeon ole Kirgotty, Mr Geoffrey Mwangi, Mr Mudzo Nzili and Ms Ruth Makallah when they appeared in court over NHIF case on January 29, 2019.

Prosecutors were Tuesday given one month to supply more than 20,000 documents to the suspects facing charges over the loss of over Sh500 million at the National Hospital Insurance Fund (NHIF).

Appearing before Chief Magistrate Douglas Ogoti Tuesday, the investigating officer said the documents to be relied on during the hearing were bulky — both in soft and hard copy — and therefore needed time. The officer said 20,520 documents will be used.

Prosecution counsel Victor Owiti also asked the court to be allowed to supply bank statements — which form the bulk of the documents — in soft copies, adding that they will highlight the pages they will be referring to. The defence team, led by Mr Assa Nyakundi, had opposed the application, saying, electronic evidence was prone to manipulation. The court also extended orders stopping Webtribe Ltd and its directors Danson Muchemi and Robert Muriithi from interfering with the payment system, despite protestations from the firm through its lawyer Steve Ogolla.

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Mr Ogolla had argued that the extension of the order was not necessary because there was no indication that the company intended to interfere with the system. He said the company had a binding contract and it would adhere to the terms.

In the case, NHIF Chief Executive Officer Geoffrey Mwangi and his predecessor Simeon Kirgotty have denied 17 counts relating to loss of over Sh500 million at the insurer.

TENDER DOCUMENTS

Mr Kirgotty is charged with seven counts, including abuse of office, wilful failure to comply with the law relating to management of public funds and wilful failure to comply with procurement procedures.

The court heard that he conferred a benefit by authorising payment of over Sh545 million to Webtribe Ltd, a company contracted to collect payments on behalf of NHIF. Mr Mwangi is alleged to have extended the contract and authorised the payment, which might have led to loss of funds at NHIF.

Mr Mwangi, Mr Kirgotty, Ms Ruth Makallah and Ms Pamela Marendi denied a charge of engaging in a project without prior planning. They allegedly committed the offence between February 7, 2014 and August 15, 2014 when they engaged the services of Webtribe to collect their revenue at a cost of Sh49.5 million. Ms Irene Rono, Ms Jacinta Mwangi, Mr Gilbert Kamau, Mr Kennedy Wakhu and Mr Fredrick Sagwe, who were members of the tender evaluation committee, were accused of failing to adhere to procedures and criteria set out in the tender documents.

Mr Ogoti directed prosecutors to supply the documents by February 28. The case will be mentioned on March 4 to confirm if the orders have been complied with. The pretrial will be held on March 29, 2019.

By SAM KIPLAGAT

UN: Boko Haram threat displaces 30,000 from Nigeria’s Rann town

More than 30,000 people fled the Nigerian town of Rann over the weekend amid fears of renewed attacks by the Boko Haram armed group, according to the United Nations refugee agency.

MAP

UNHCR spokesman Babar Baloch told reporters in Geneva on Tuesday the town’s population “seems to be panicking and they are on the run as a pre-emptive measure to save their lives.”

UNHCR spokesman Babar Baloch told reporters in Geneva on Tuesday the town’s population “seems to be panicking and they are on the run as a pre-emptive measure to save their lives.”

Rann, near the border with Cameroon in northern Borno state, already saw an exodus of about 9,000 people earlier this month to Cameroon after a Boko Haram attack on January 14 killed 14 people.

Baloch said Cameroon sent back the 9,000 refugees and initially deployed troops that are part of a multinational taskforce to protect the town. “It was a bit peaceful, but as far as we understand now, that multinational taskforce has left,” he said. Refugees told aid workers that Boko Haram fighters had “promised to return to Rann”, he said, explaining the panic. Baloch said UNHCR was reiterating its call to Cameroonian authorities “to keep the borders open, as we see thousands fleeing every day”.

Tough living conditions

Baloch said a recent upsurge in violence in northeastern Nigeria had driven more than 80,000 civilians to seek refuge in already crowded camps or in towns in Borno state, “where they are surviving in tough living conditions”. Rann, he said, had already been housing about 80,000 displaced people.

“The escalation in the conflict has thwarted people’s intention of returning to their homes,” he said, adding some refugees who attempted to return home from Cameroon had been displaced multiple times inside Nigeria or forced to become refugees again in Cameroon. “The hostilities have strained humanitarian operations there and forced aid workers to pull out from some locations,” he said.

Jens Laerke, spokesman for the UN humanitarian agency, told reporters that 260 aid workers were withdrawn from three locations in Borno state since early December.

 

Top UN judge resigns citing ‘shocking’ interference from Trump admin, Turkey

A senior United Nations judge who worked in one of the body’s international courts in The Hague is reportedly resigning over “shocking” political interference from the Trump administration and Turkey. The German judge, Christoph Flügge, accused the U.S. of threatening other judges after steps were taken to investigate U.S. soldiers’ conduct in Afghanistan, according to The Guardian. He also claimed that Turkey’s government made “baseless” accusations against a Turkish judge in order to end his tenure at a U.N. court. Turkish Judge Aydın Sefa Akay was removed from the court after facing allegations that he had links to Fethullah Gülen, a U.S.-based cleric whom Turkish President Recep Tayyip Erdoğan has blamed for a failed 2016 coup attempt. 

“Turkey applied its veto against Judge Akay,” Flügge said, according to The Guardian. “We, the other judges, immediately protested. But his tenure was nevertheless not extended by the U.N. secretary general. And with that, he’s gone.”

Flügge, who had been a permanent judge on the International Criminal Tribunal for the Former Yugoslavia since 2008, added that the U.N.’s failure to react to recent actions by Turkey has set a troubling precedent. 

“Every incident in which judicial independence is breached is one too many,” he said. “Now there is this case, and everyone can invoke it in the future. Everyone can say: ‘But you let Turkey get its way.’ This is an original sin. It can’t be fixed.”

The former judge also called out U.S. national security adviser John Bolton, condemning him for some of the past comments he made about the International Criminal Court. 

“John Bolton, the national security adviser to the US president, held a speech last September in which he wished death on the International Criminal Court,” he said.

“If these judges ever interfere in the domestic concerns of the US or investigate an American citizen, he said the American government would do all it could to ensure that these judges would no longer be allowed to travel to the United States – and that they would perhaps even be criminally prosecuted.” He said that he and other judges on the court were “stunned” by Bolton’s statement.  “It is consistent with the new American line: ‘We are No. 1 and we stand above the law,’ ” he added.

Onnoghen: Your reactions hasty, mistaken, Presidency tells US, UK, EU.

The Presidency on Sunday 27th January, 2019 heavily criticised the United States, the United Kingdom and the European Union for voicing their opposition against the suspension of the Chief Justice of Nigeria, Justice Walter Onnoghen, without allegedly following due process of law.It said the three did not only act in a haste, but also made “serious mistakes” and “unfounded assumptions” in the stance they took on President Muhammadu Buhari’s decision to suspend the CJN.

It noted that the US, the UK and the EU got things wrong when they concluded that the suspension was linked to the February polls.

In a statement on Sunday night by the Senior Special Assistant to the President on Media and Publicity, Mr Garba Shehu, the Presidency described the stance of the three as unfortunate.

“The statements by the three seem more driven by unfounded assumptions and to be honest, a certain condescension to this African democracy. This is unfortunate. But this gives us an opportunity to clarify some points in the hope that these three friends reach a deeper understanding of the situation.

“The statements by the US, UK and EU speak of their respect for constitutional practice and fair elections. However, the positions they stake tend to contravene rather than strengthen these laudable objectives”, the Presidency argued.

Defending Buhari’s action, the Presidency claimed that Onnoghen was the architect of his own travails.

It stated further, “CJN Onnoghen’s situation is one of his own making and, to a large degree, his own choosing.

“The CJN was brought before the Code of Conduct Tribunal because of a serious breach of law regarding his assets declaration. This is not a mere technicality like innocently placing a document in a wrong file or mistakenly placing yesterday’s date on a document.

“All credible evidence indicates the CJN owned and operated several secret bank accounts. Unexplained large sums of money, exceeding several millions of dollars have passed through these accounts. Several thousand dollars are currently packed in the accounts. Multiple deposits of equal sums of money were deposited in some of those accounts during the same day. Such rapid and equal deposits are indicative of a person attempting to evade banking reporting laws and regulations.
 
“Thus far, CJN Onnoghen has given no plausible explanation for the funds or for failing to report the subject accounts in his assets declaration despite having ample time and opportunity to explain the omission.  Given the amount of money involved and the CJN’s inability to explain the source of the funds, the most plausible explanation at this point is also the most unfortunate explanation. No one did this to CJN Onnoghen. He and he alone is to blame for this turn of events.”

The Presidency expressed concern that the same US, UK and EU that had before now chided Nigeria on corruption issues, were turning a blind eye to Onnoghen’s case.

It added, “Over the years and with great frequency, the authors of the three statements have advised and even chided Nigeria about official corruption. Now we are presented with the sad and unwanted situation where the CJN is discovered to have a vast, unexplained amount of money in his pocket.

“Because of this, he has been thoroughly discredited. It is untenable that a person in such compromised circumstances would be allowed to preside over the entire judicial system of a great nation. That would travesty the nation and what it stands for.

“Had the situation been reversed and the US, UK or any EU member government found that its chief judicial official is the recipient of large sums of money of questionable origin and Nigeria suggested that you retain the person in that position, you would question Nigeria’s bona fides. You also would swiftly move to suspend the official pending final determination of the causes against him.”

The statement further asked if any of the three would allow an Onnoghen to preside over its judiciary after the latest discoveries.

The Presidency stated more, “Not one of your nations would allow a person enmeshed in legal uncertainty to preside over your legal systems until the cloud has been cleared from him. That would incentivize corruption and assault the rule of law.

“Thus, the CJN should have and could have helped the process in this regard by recusing himself from the bench until this matter is settled.

“Instead, he indefinitely postponed a NJC meeting for no plausible reason except to avoid any consideration of this matter by the NJC.

“Again, this calls into question his motives while undermining the normal operations of the judiciary. The CJN cannot be allowed to use his office to shield himself from the normal operation of the law as applied to any other jurist or any other Nigerian for that matter. Such a ruse is effectively an abuse of office. His position is one of utmost public trust; it is not a shield to protect him from the fair consequence of his own actions.

“Despite these errors and omissions by the CJN, let us make this very clear, he has not been removed from office. Nor has he been permanently replaced. Those who claim that he has been permanently removed, do so out of imprecision of thought or mischief.

“CJN Onnoghen has been suspended pending the final determination of the substantive issues in his matter. The suspension is only temporary. This is only as it should be. He cannot sit as both defendant and umpire in his own matter. No legal system allows for such self-interested adjudication; the US, UK and EU should not now ask us to embrace such an anomaly.

“While the three friends seem to give much credence to those who question the constitutionality of the suspension, they seem to give less to those who believe what we did is constitutional and protective of the integrity of the judiciary. Only the three can answer why they have assumed this bias.”

On the issue of linking the suspension with next month’s elections, the Presidency replied, “The three make a curious direct linkage between the CJN suspension and the elections. However, in Nigerian law there is no such linkage. The CJN does not run the elections. Nor is he the first arbiter of any electoral complaints. He and the Supreme Court will only get involved as the final arbiter at the end of the appellate process.

“For the authors to link the CJN to the elections in this way is illogical unless they assume that election complaints will be filed and will go all the way to the Supreme Court. Here perhaps they know something about the intentions of certain political actors to which we are not privy.

“Yet, even with that, the US , UK and EU should want any such matters to be heard by a Supreme Court led by a CJN without an obvious and outstanding ethical and legal blemish on his ledger. To have such a person preside over any case, would call into question the impartiality of any decision rendered and undermine the rule of law.

“This cannot be what these three friends of Nigeria intended. Thus, they should do a bit more research on this matter and refrain from being too hastily attracted by the arguments of those who have partisan agenda at odds with the government’s positions on most matters and who thus hope to use this issue as a new arrow in their quiver of partisan contestations.”

Anambra CJ frees two minors, 39 other prison inmates

The Chief Judge of Anambra State, Justice Peter Umeadi, has released on bail 41 prison inmates and warned that underage persons should not be kept in prisons, and asked them to be attending their trials from home. It was learnt that among those freed during the CJ’s 2019 first quarter jail delivery/prison visit were two minors, whose ages are 12 and 14 years. The minors were said to have been charged with stealing and kidnapping. “Prisons are not meant for the underage as they pose enormous danger to their future and destiny,” Umeadi said. He noted that the visit had achieved the purpose of jail delivery, which he said was aimed at giving voice to the voiceless and decongesting the prisons. “The quarterly intervention in the prisons is necessary as it helps in looking at cases of persons, who have spent long time behind bars, to see what can be done to grant them bail, thereby decongesting the prisons,” Umeadi added. The CJ warned those in charge of bail to stop charging money, describing the act as illegal and criminal, noting that bail was free.

Southern City News gathered on Sunday that 15 persons were freed from the Nnewi Prison; 13 from the Onitsha Prison; while 13 other persons regained their freedom from the Ekwulobia Prison. Out of the 15 inmates freed at the Nnewi Prison, four were females and they were said to have spent at least two years awaiting trial. Among the 13 inmates freed at the Onitsha Prison, three had psychiatric issues.

The Controller of Prisons in the state, Emmanuel Nwakeze, commended Umeadi for the intervention, noting that it would help to decongest prisons in the area. He noted that the prisons authorities had prioritised prisoners’ welfare, maintaining that they were being well fed and taught skills that would make them self-reliant when discharged.

Nwakaeze urged those who were freed to be law-abiding as they were being re-integrated into the society. He urged them to desist from crime so that they would not find themselves back in prisons. The Assistant Controller of Prisons in charge of the Aguata Prison, Mr Ubenyi Patrick, promised quick discharge of the freed inmates. However, an 85-year-old woman, Omeho Ifejiaka, charged with child trafficking and kidnapping, who had spent eight months in prison, was not that lucky as her application for freedom was refused following an objection by Chief Ikenna, SAN.