ICC rules Kenya did not co-operate in Uhuru’s case
President Uhuru Kenyatta with Mr Stephen Kay, one of his lawyers, at the ICC court at The Hague. FILE PHOTO | REUTERS
What you need to know:
Kenya did not co-operate with the ICC when it requested phone and bank records of President Kenyatta.
Kenya’s fate lies in the hands of member states after the International Criminal Court (ICC) ruled that it failed to comply with its obligation during the recent trial of President Uhuru Kenyatta at The Hague.
The Trial Chamber V (B) Monday found that Kenya did not co-operate with the ICC when it requested phone and bank records of President Kenyatta.
The ICC has referred the case to the Assembly of States Parties (ASP), the court’s oversight body made up of representatives of member states, “which is in a better position to handle the matter.”
The prosecution had in 2013 filed an application for a finding of non-cooperation against the Kenyan Government, alleging that it failed to comply with a request to produce Mr Kenyatta’s confidential records.
“Noting that the case against Mr Kenyatta has been already terminated and considering the relevance of the materials sought in the prosecutor’s request to current or future investigations, Trial Chamber V (B) considered a referral to the ASP appropriate for the purpose of fostering cooperation,” says ICC.
The Chamber argues that the lack of bona fide co-operation by the Kenyan government in this instance, may have a serious impact on the functioning of the court in future proceedings.
In accordance with the Rome Statute, the court’s founding treaty, all States Parties are obliged to co-operate fully with the ICC in its investigations and prosecutions.
Where a State Party fails to comply with a request to co-operate with the court, thereby preventing it from exercising its functions and powers, ICC judges can make a finding of a failure to comply with a request for co-operation by a state.
Mr Kenyatta was charged as an indirect co-perpetrator, with five counts of crimes against humanity allegedly committed during the 2007/8 post-election violence in Kenya.
Charges were confirmed on January 23, 2012, and the case was committed to trial before Trial Chamber V (B).
However, in March 2015, Trial Chamber V (B) decided to terminate the proceedings in this case and to vacate the summons to appear against him, noting the prosecution’s withdrawal of charges against Mr Kenyatta.
In December 2014, Trial Chamber V (B) had rejected the application for referral of the matter to the ASP. The Prosecutor appealed this decision in March 2015.
In August 2015, the ICC Appeals Chamber reversed this first decision and remanded it to the Trial Chamber.
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