ICC allows Bensouda to appeal refusal to refer Kenya to Assembly of States Parties in Uhuru case

NAIROBI, KENYA: Trial Chamber V(B) of the International Criminal Court has granted a request by Prosecutor Fatou Bensouda to appeal decision declining to refer to the Assembly of States Parties the matter in relation to non-compliance of the Kenyan Government with its obligations under the Rome Statute.

On November 29, the Prosecution filed an application for a finding of non-cooperation against the Kenyan Government, alleging that the Government had failed to comply with a request to produce financial and other records relating to Mr Kenyatta. 

On December 3, 2014, Trial Chamber V(B) issued a decision rejecting this application and declining to refer the matter to the ASP. On 9 December 2014, the Prosecution filed a request for leave to appeal the decision of 3 December 2014. 

In its Monday decision, Trial Chamber V(B) considered the request and the observations made by the Kenyan Government and the Legal representative of the victims.

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The Chamber decided to authorise the Prosecutor to appeal the decision on Kenya’s cooperation with regard to whether or not the Chamber has discretion to make a finding of non-compliance, and to refer the matter to the Assembly of States Parties (ASP), even where it had been determined that a State has failed to comply with a request for cooperation; and even if the Chamber has such discretion, whether the Chamber erred in the exercise of its discretion. 

The Chamber found that these issues would significantly affect the fair and expeditious conduct of the proceedings. Particularly in light of the Chamber’s finding that the ne bis in idem principle would not be triggered in the present circumstances, the Chamber noted that the withdrawal of charges against Mr Kenyatta does not preclude ongoing investigations. Nor does it relieve the Kenyan Government of its statutory obligation to comply with any cooperation requests from the Court. The Chamber highlighted that the mechanism of referral to the ASP of matters of non-compliance is established in the Rome Statute, inter alia, in order to facilitate political and diplomatic efforts to promote cooperation with the Court. 

Mr Kenyatta was charged, as an indirect co-perpetrator, with five counts of crimes against humanity consisting of murder, deportation or forcible transfer, rape, persecution and other inhumane acts allegedly committed during the post-election violence in Kenya in 2007-2008.

Charges were confirmed on 23 January 2012, and the case was committed to trial before Trial Chamber V(B).  On 5 December 2014, the Prosecutor withdrew the charges against Mr Kenyatta.

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