Kenya has faulted the process of shortlisting for the position of the Prosecutor of the International Criminal Court (ICC).
In a communication to the ICC on July 13, 2020, Kenya’s ambassador to the Netherlands, Lawrence Lenayapa, rejected the four candidates shortlisted for the prosecutor.
Kenya argued that the recruitment process is skewed to favour one applicant and that the shortlist favours candidates from outside Africa.
In his letter, Ambassador Lenayapa said that the shortlist denied member states the opportunity to “identify, through open and transparent consultations, a consensus candidate.”
According to Lenayapa, there is a need for reconsideration of all the applicants by allowing States Parties to restart the nomination of candidates that can be presented for election during the upcoming Assembly of States Parties.
“The Republic of Kenya, therefore, rejects the shortlist contained in the Report of the Committee on the Election of the Prosecutor and calls for a reconsideration of all the applicants for the position and in the alternative encourage States Parties to commence nomination of candidates that can be presented for election during the upcoming Assembly of States Parties,” Lenayapa said in the letter.
Among those shortlisted are Irishman Fergal Gaynor and Morris Anyah (American) who represented victims of the post-election violence in Kenya as well as Susan Okalany (Uganda), who is currently a justice of the High Court of Uganda and a judge in the International Criminal Division, and Richard Roy (Canada).
Gaynor, who was the victims’ representative when the ICC withdrew crimes against President Uhuru Kenyatta, is currently the Reserve International Co-prosecutor at the extraordinary chambers in the courts of Cambodia, while Anyah, who was also representing victims, quit due to the decision by the trial judges to limit victim representation at the Kenya case trial.
Anyah also represented former Liberian President Charles Taylor at his war crimes trial.
The candidates were shortlisted by a special committee to succeed outgoing ICC Prosecutor Fatou Bensouda.
In his letter, Lenayapa said that the names of the candidates as presented by Committee on the Election of the Prosecutor may not enable the realisation of the desired consensus.
According to him the current shortlist does not meet the required expectation and appears skewed in favour of a particular candidate yet they expected each shortlisted candidate would have an equal chance of being elected as next prosecutor.
Lenayapa said presenting States Parties with a fait accompli denies them an opportunity to choose from a variety of candidates. Article 42(2) of the Rome Statute provides that the Prosecutor and Deputy Prosecutor shall be of different nationalities, hence the disqualification of the Canadian candidate.