ICC has no legal powers to consider AU plea- presidency

ICC Second Vice President Judge Cuno Tarfusser who responded to letter from AU on Kenya cases. PHOTO/FILE

What you need to know:

  • ICC Presidency said that it lacked legal powers to defer the cases
  • There are no pending requests before the ICC for the deferral of Kenya-related cases to Kenyan judicial institutions
  • The AU complained that President Kenyatta would be unable to attend two top security meetings slated for this month

The International Criminal Court (ICC) presidency has said it has no legal powers to consider an application from the African Union to have the cases facing President Kenyatta and Deputy President William Ruto stopped until its appeal to have the trials moved to Kenya is heard and determined.

In a reply to a letter by the AU, the ICC Presidency said that it lacked legal powers to defer the cases until its application is determined. Such powers, ICC Second Vice President Judge Cuno Tarfusser said, lay with the judges hearing the cases.

“The Second Vice-President clarified that the Presidency has no legal powers to consider arguments and concerns related to ongoing cases, and that such matters should be raised before the relevant Chambers in accordance with the Rome Statute and the ICC’s Rules of Procedure and Evidence,” read a statement from the ICC.

“He also noted, in response to a reference made in the letter from the African Union, that there are no pending requests before the ICC for the deferral of Kenya-related cases to Kenyan judicial institutions,” the statement added.

Judge Cuno stressed that “the Judges of the Court must take all their decisions in accordance with the mandate and legal framework established by the States that created the Court – including the 34 African States that are party to the Rome Statute”.

The Court however reiterated its full commitment to “friendly and cooperative relations” with the AU.

AU had on September 10 written to the ICC demanding that the cases facing the three Kenyans be halted until its application is heard and determined. The letter was copied to the United Nations Security Council.
“In addition, the prosecution has ignored several procedural requirements having the effect of eroding the principles of natural justice. The court’s attention has been drawn to this aspect on two occasions by its own judges,” read the letter signed by AU Chairperson Hailemariam Desalegn and by AU Commission Chairperson Nkosazana Dlamini-Zuma.

“This leaves the African Union with no option but to ask that until the request of the AU is considered and clearly responded to, the cases should not proceed.”

TOP SECURITY MEETINGS

The letter also referred to an appeal filed by ICC Prosecutor Fatou Bensouda against allowing Mr Ruto to attend select sessions arguing that the judges should not have forced the Deputy President to attend all the sessions before the appeal was determined.

“The Trial Chamber in its earlier decision had taken cognisance of the Deputy President’s constitutional responsibilities on which basis the court permitted him to attend only some sessions. On these grounds the court should have upheld its decision pending the determination of the Prosecutor’s appeal,” the letter stated.

The AU complained that President Kenyatta would be unable to attend two top security meetings slated for this month because both he and Mr Ruto cannot be out of the country at the same time.

“These meetings include the United Nations General Assembly High Level Segment scheduled for September 23 to 27 and the European Union facilitated conference scheduled for September 16 in Brussels,” read the letter.

“Participation in both conferences at the highest level is critical for Kenya in its trajectory and efforts towards peace and security both at the national and regional levels.”