ICC judges put Kenya on the spot over Uhuru’s election violence case

International Criminal Court judges on Monday found Kenya guilty of failing to cooperate with the court in the collapsed case against President Uhuru Kenyatta.

They have now referred the country to the Assembly of States Parties (ASP) for action.

The ASP can impose sanctions against the country for failing to comply with its obligations.

The ruling also means that Kenya will be discussed as a separate agenda at the next meeting of the States Parties.

The action might now lead to Kenya being discussed at an open plenary session of the ASP, as well as the body making a resolution against the country.

The resolution by the ASP- which may decide as it “deems fit”- is final.

However, it can also make a decision to pursue non-judicial means to get the country to cooperate with the court.

Any action by the ASP is likely to be binding on Kenya even in future cases with the court.

ICC judges agreed with Prosecutor Fatou Bensouda that the government had sabotaged and frustrated investigations and refused to surrender material that would have aided in prosecuting the case, including the President’s bank and phone records.

Although the court had earlier left open the possibility of the case being revived, the act of referring a case to the ASP is mainly a diplomatic and political one.

Kenya has been more successful in lobbying and arguing its case at the assembly, also sometimes referred to as the countries, which make up the Rome Statute.

African countries are the majority of the assembly members.

It was here that Kenya lobbied for a change of the rules to allow the cases against President Kenyatta and Deputy President William Ruto to continue in their absence as long as the two were represented by their lawyers.

Kenya also successfully lobbied the ASP to change rules to allow change of venue for trial, a move that allowed part of the evidence in the preliminary case against President Kenyatta to be taken by video link.

CASE REVISIT

This lobbying was sometimes accompanied by threats of withdrawal from the ICC by African countries.

Ms Bensouda lodged the non-cooperation case, accusing Kenya of sabotaging her bid by not providing relevant materials that included President Kenyatta’s records.

She argued that the failure to provide the records had severely injured the case.

The court, in December 2014, had left the window open for the re-introduction of the case should new evidence emerge.

Yesterday, the ICC said: “The Republic of Kenya failed to take all reasonable steps to execute a request for cooperation from the court, including by not providing clear, relevant and timely responses or taking any meaningful steps to compel production of requested information.”

President Kenyatta had been charged, together with five other Kenyans, with bearing the greatest responsibility for the 2007/2008 post-election violence that led to the deaths of 1,133 people and the displacement of more than 650,000.

When the case opened, he was a Deputy Prime Minister in the Grand Coalition government.

The others were Mr Ruto, then minister Henry Kosgey, Francis Muthaura, who was the head of the civil service and secretary to the Cabinet, and Maj-Gen Hussein Ali, who was the Police Commissioner.

Also charged alongside them was radio journalist Joshua arap Sang.

The cases against the four were dismissed.

Mr Kenyatta and Mr Ruto were later discharged but the court said the cases could be reopened should new evidence emerge.

COOPERATION
Elizabeth Evenson, the associate international justice director at Human Rights Watch, welcomed Monday's ruling.

“The ICC has squarely called out Kenya’s breach of its cooperation obligations. ICC member countries should make sure the message is heard in Nairobi that they will not turn a blind eye to the government’s obstruction of justice,” Ms Evenson said.

The ruling brings a new dynamic to the 2017 elections because President Kenyatta and Mr Ruto had both shaken off the ICC tag.

The international community had ran an active campaign to dissuade Kenya from electing the Jubilee leaders in 2013, with a US representative warning at the time that choices at the ballot box would have consequences.

Now, Kenya will have to argue its case before the 124-member assembly in November.

The ASP is the law-making and supervisory arm of the ICC.

“The assembly may certainly support the effectiveness of the Rome Statute by deploying political and diplomatic efforts to promote cooperation and to respond to non-cooperation,” the ASP Rules of Procedure on non-cooperation states.