Kenya may face sanctions after ICC revives case

Kenya is not yet off the hook, after top International Criminal Court judges revived a case that could see the country reported to the UN for allegedly refusing to help the court gather evidence against President Uhuru Kenyatta.

ICC appeal judges reversed a decision by a lower court that had decided not to report Kenya for not helping the court in its investigations. They ordered the case to be returned to the Trial Chamber for the judges to look at it afresh and determine whether Kenya should be reported.

Once reported to the UN Security Council, the country could face sanctions.

The prosecutor, Ms Fatou Bensouda, was not spared either. The judges found that the prosecution had flouted rules on the length of an appeal.

They also dismissed an application by Kenyan NGO Africog, saying it was “unhelpful” and not worthy considering or making a finding over.

Referral is a political step and will not have any direct effect on the withdrawal of the case against President Kenyatta.

BE HEARD AFRESH

The first step would be to report Kenya to the Assembly of States Parties, the grouping of nations forming the ICC, of which Kenya is a member.

In the extreme, the government could be reported to the UN Security Council, where sanctions could be applied after a vote.

Security council votes are tricky. They require all five permanent members, who have veto powers, to agree.

As a result of Wednesday’s ruling, the case will now be heard afresh. The appeal judges said regardless of the withdrawal of the charges against President Kenyatta, “the Trial Chamber was and remains competent to decide on whether it would be appropriate to refer Kenya’s non-compliance to the ASP either to seek a concrete remedy for the lack of cooperation in the case at hand or to foster cooperation more broadly for the sake of any proceedings arising out of investigations in the situation”.

However, they rejected Ms Bensouda’s argument that the decision to report a country to the ASP is mandatory, ruling that it is up to the trial judges to decide.

A summary of the unanimous appeal decision was read in open court yesterday by the president of the ICC and the presiding judge in the matter, Judge Silvia Fernández de Gurmendi.

Other ICC appeal judges are Sanji Mmasenono Monageng, Howard Morrison, Piotr Hofmaski and Bertram Schmitt.

In her appeal that was supported by the victims’ lawyer, Fergal Gaynor, Ms Bensouda had argued that once the Trial Chamber had determined that Kenya had failed to cooperate fully with the court, it had no option but to refer Kenya to the ASP for disciplinary measures.

In the judgment, the Appeals Chamber found that the Trial Chamber erred by “conflating” non-compliance proceedings and proceedings against an accused before the court.

The two, according to the judges, are separate and cannot be taken together. A case on failure to cooperate is filed against a State while the case against President Kenyatta was about an individual, they said.

President Kenyatta was charged with crimes against humanity for allegedly being a key perpetrator in the post-election violence in Kenya in 2007/8 by sponsoring retaliatory attacks against perceived ODM supporters in Naivasha. The charges were dropped for lack of evidence.

An estimated 1,133 people died in the violence, according to official government figures, while another 650,000 people were uprooted from their homes and became internally displaced.

Ms Bensouda blamed the collapse of her case on non-cooperation by Kenya to provide details of President Kenyatta’s assets, failure to allow taking of statements from senior police officers in the areas most hit by the violence and failure by the government to freeze President Kenyatta’s assets.

But the prosecution was criticised for carrying out poor investigations.

The trial judges had ruled that reporting Kenya would unfairly delay President Kenyatta’s case.

The appeal judges said the case against Kenya and the one against Mr Kenyatta were different and should have been treated separately.

“The Appeals Chamber finds that the Trial Chamber erred in the exercise of its discretion by conflating the non-compliance proceedings against Kenya with the criminal proceedings against Mr Kenyatta, by failing to address whether judicial measures had been exhausted and by assessing the sufficiency of evidence and the conduct of the Prosecutor in an inconsistent manner.”

IRRELEVANT ARGUMENTS

“The Appeals Chamber finds that these errors materially affected the Trial Chamber’s decision not to refer the matter of Kenya’s non-compliance,” the judges said.

The appeal judges rejected observations by Kenyan group Africog, which wanted Kenya to be found non-cooperative. The judges said Africog’s arguments were irrelevant and failed to address the issues.

And for the ICC, the word count and the number of pages is not something to be taken lightly.

“The Appeals Chamber notes that the Prosecutor’s Document in Support of the Appeal does not have spaces between certain characters in the footnotes. This practice undermines the accuracy of the word count that the parties must certify in filings before the Appeals Chamber,” the judges said.

Ms Bensouda was spared any further action “in the interests of justice” but was instructed “to henceforth observe proper spacing between characters in documents filed before the Appeals Chamber”.