Kenya’s delegation to the Assembly of States Parties has threatened to lead a mass walkout and even withdrawal from the Rome Statute should the International Criminal Court (ICC) dismiss their case seeking to have rule 68 suspended.

The contentious rule allows the use of recanted evidence at the ICC and Kenya with the support of the African Union and several other countries (AU) is against the rule being used in the ongoing cases of deputy president William Ruto and journalist Joshua Arap Sang.

Foreign Affairs Cabinet Secretary Ms Mohamed said Kenya’s position on the use of the Rule 68 adopted during the 12th Assembly’s meeting has been violated after Prosecutor Fatou Bensouda was allowed to use recanted evidence by six witnesses.

“We are here to restate that rule will not be applied to the case against the Deputy President and Sang. That was the agreement during the meeting in 2013,” Ms Mohamed said.

Mr Ruto’s lawyers protested against the rule in August, arguing it was detrimental to the survival of their client and have appealed for its reversal. ICC Judge Sanji Monageng Maseno who promised Rule 68 would not apply in Kenya case stepped aside from hearing appeal.

Kenya is also seeking to have an audit of how the ICC witnesses in the two cases were procured in the apparent drawn-out battle against the ICC, which has seen the prosecutor Fatou Bensouda lobby against the country’s agenda.

Foreign affairs cabinet secretary Amina Mohammed told the 14th session of the national assembly of state parties that Kenya was disappointed with the conduct of the ICC with regard to the two cases.

“Our expectations have been dampened by the activities of the court. The decision of the judge to apply Rule 68 in the case against the deputy president was regrettable. We are equal members of the assembly and we should be made to feel equal through equal application of the law,” Ms Mohammed said.

“The court’s current disposition must be challenged by all those with goodwill… It was a regrettable decision by the trial chamber to apply the amended Rule 68 in the Ruto case. Amendments to rules of procedure should not prejudice the accused. The myth that Africans are complacent in the face of impunity is unwarranted,” she added.

The 14th Session of the Assembly of State Parties in The Hague, Netherlands brings together countries that have ratified the Rome Statute, its financiers and the UN Security Council.