ICC refers Kenya to Assembly of States Parties

International Criminal Court prosecutor Fatou Bensouda. Kenya might face sanctions for allegedly failing to co-operate with the International Criminal Court (ICC) in President Uhuru Kenyatta's case that was later terminated. (AFP PHOTO / VANO SHLAMOV)

Kenya might face sanctions for allegedly failing to co-operate with the International Criminal Court (ICC) in President Uhuru Kenyatta's case that was later terminated.

Trial Chamber V judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson yesterday ordered that Kenya be reported to the Assembly of State Parties (ASP) for action to produce the requested information.

The three judges found that Kenya breached the Rome Statute in the case as it gave responses to requests for assistance by Prosecutor Fatou Bensouda away from set deadlines.

The three judges also said that Kenya gave casual and vague replies to the office of the prosecutor whenever they replied to her request.

"The chamber hereby find the Republic of Kenya has failed to comply with its statutory obligations to consult with the court, including by not raising challenges to the legal basis of a request for co-operation within a reasonable time frame and take all reasonable steps to execute a request for co-operation from the court, including by not providing clear, relevant and timely responses or taking any meaningful steps to compel production of requested information," the 18-page verdict read in part.

The judges found that Kenya's refusal to forward requested documents had completely stalled the prosecution and at the same time scuttled future investigations arising from the 2007-2008 post-election violence.

Future proceedings

"In any case, the chamber finds that, in general, the lack of bona fide co-operation by the government of a situation country, as shown by the Kenya Government in this instance, may have a serious impact on the functioning of the court in future proceedings," ruled the bench led by Ms Ozaki.

The court found that the approach of the Kenya Government fell short of the standard of good faith co-operation required under the Rome Statute and further noted that this situation had persisted even following a period of active judicial supervision, and that the co-operation proceedings had reached a deadlock.

The prosecution filed an application for a finding of non-cooperation against the Kenya Government on November 29, 2013, alleging that the Government had failed to comply with a request to produce records relating to President Kenyatta.

On December 3, 2014, Trial Chamber V (B) dismissed the application for referral of the matter to the ASP.

The prosecutor however did not give up on her quest to punish Kenya for the collapsed cases as she appealed to the ICC Appeals Chamber.