Fatou Bensouda asks to appeal decision not to refer Kenya to ASP

Prosecutor Fatou Bensouda has asked the International Criminal Court to allow her to appeal the decision against Kenya being declared non-cooperative even as victims of post-election violence urged her to go for smaller fish.

On Tuesday evening, Ms Bensouda contested the Trial Chamber V (b)'s decision not to refer Kenya to the Assembly of State Parties (ASP), saying the judges had made an error.

The decision by judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson was made in March this year after the Prosecutor accused Kenya of non-compliance with her office.

Trial Chamber V (b) rejected a Prosecution request for a finding of non-cooperation against the Kenyan government and referral of the matter to the Assembly of States Parties to the ICC Rome Statute.

On the same day, in a separate decision, Trial Chamber V (b) rejected the Prosecution’s request for further adjournment and directed the Prosecution to indicate either its withdrawal of charges or readiness to proceed to trial.

At the time, Ms Bensouda argued that her office had been unable to get the required information from the Kenyan government concerning Uhuru Kenyatta’s financial and communication records especially during the post-election violence. She asked for Kenya to be taken before the ASP as well as the indefinite postponement of Mr Kenyatta’s trial date.

Last week, Mr Bensouda withdrew the charges after failing to convince the judges for a postponement. She argued she had insufficient evidence and that the government had frustrated her.

However the Prosecutor still wants Kenya to be debated at the ASP, the creators of the Rome Statute, for a possible reprimand.

“The Trial Chamber thereby avoided the automatic referral to the ASP which would otherwise have been the inevitable consequence of its findings,” she argued.

She argued the refusal to refer Kenya was “a wrong decision on an issue in the context of article 82(1)(d) of the Statute unless soon remedied on appeal will be a setback to the proceedings in that it will leave a decision fraught with error to cloud or unravel the judicial.”

'BETRAYAL'

On Tuesday, PEV victims through their lawyer Mr Fergal Gaynor demanded that Ms Bensouda goes for other perpetrators who had neither been brought before the ICC nor local courts in Kenya.

In a response to the Prosecutor’s decision to withdraw charges of crimes against humanity against Uhuru Kenyatta, Mr Gaynor said the survivors of the violence had received no justice from Kenyan judicial systems and that it would be a “betrayal” if the ICC walked away from them.

“The Prosecution should bring charges against other mid and high-level suspects for crimes committed in Naivasha and Nakuru. To ensure that the best possible body of evidence reaches the Pre-Trial Chamber, existing investigations should be greatly intensified, on an urgent basis,” the victims' representative observed.

“It is imperative for the Prosecution to take all action in the courtroom, and in the diplomatic arena, to ensure that it can gain access to every individual and every item necessary — wherever in the world they might be — to uncover the truth.”

The lawyer compiled a set of views from victims shortly after the notice to withdraw charges was filed last week. Many of them accused the Prosecutor of naivety for believing the government headed by Mr Kenyatta would fully cooperate.

In fact some are bitter they were led on in a process that would eventually collapse when other alternatives like financial compensation were ignored.

But some want charges against Mr Kenyatta reinstated and witnesses who pulled out be forced to testify.

"The victims’ views make uncomfortable reading: anger, betrayal and disbelief at the prospect that they to be totally abandoned by the ICC. In addition, the LRV has received reports of security concerns, in the Rift Valley region, following the dropping of the charges.

"It is clear that most victims wish both the Prosecution, and the Court in general, to do whatever they can within their power to bring justice to the victims," the response by the victims says.