NGO row poses new test for International Criminal Court Prosecutor Fatou Bensouda

The Appeals Chamber of the International Criminal Court has granted a local non-governmental organisation amicus curiae (friend of the court) status in Prosecutor Fatou Bensouda’s case against Kenya over alleged non-cooperation.

But the decision has been opposed by another civil society organisation, setting the stage for what could play out as a major contest between two Kenyan organisations on the international scene.

An amicus curiae is not a party to a case but offers information bearing on the case without being solicited by any of the parties to assist a court.

The decision by the ICC Appeals Chamber to allow the Africa Centre for Open Governance (AfriCOG) to submit observations in Bensouda’s case resulting from the ICC versus President Uhuru Kenyatta case has been challenged by Change Associates Trust. The Trust has written to the President of the Assembly of State Parties (ASP) over what it terms a “deliberate and calculated witch-hunt”.

Bensouda has filed a case seeking to have Kenya referred to the ASP for non-cooperation in relation to Uhuru’s case, which she terminated last year for lack of evidence.

In a terse letter to ASP President Sidiki Kaba — copied to members of the United Nation’s Security Council, Africa Union member states and their European Union counterparts — Change Associates says the manner in which AfriCOG was admitted as amicus curiae was suspicious and based on misinformation.

The civil society group argues that to win its application, AfriCOG colluding with Bensouda, presented falsehoods to the Appeals Chamber on the current state of Kenya, portraying it as still reeling from the 2007/2008 post-election violence.

Through its executive director Ngunjiri Wambugu, Change Associates questions why AfriCOG filed its application on the last day of the period allowed by court rules, a move that denied anyone the chance to challenge its application. Wambugu says the application ought to have been rejected on those grounds.

“We do not have a legal avenue to raise these issues against the AfriCOG application, which is what we would have preferred. This is because the CSO (civil society organisation) deliberately filed its application on the very last day allowed by the court,” says Ngunjiri in his letter dated May 28.

The protest letter is also copied to the ICC President, Lady Justice Silvia Fernandez De Gurmendi; first vice president, Lady Justice Joyce Aluoch; and second vice president, Lady Justice Kuniko Ozaki.

The group has urged the ASP president to intervene and ensure that an injustice is not delivered through the machination of Bensouda and AfriCOG.

It complains about what it alleges is an attempt by Bensouda, using AfriCOG, to make Kenya an accused person before the court through the Uhuru case.

“AfriCOG’s entire set of observations seems to be accusations on the Government of Kenya with no connection to the prosecution’s case against Kenyatta. The ICC prosecutor is using the NGO to gradually build up a case against the Kenya Government under the guise of prosecuting Kenyatta’s case, which she admits has collapsed,” says Ngunjiri.

Crucial evidence

But AfriCOG executive director Gladwell Otieno argues in her submissions that it was Kenya’s apparent non-cooperation that led to the termination of Uhuru’s case and caused her to seek the amicus status.

Otieno accuses the Government of frustrating Bensouda’s efforts to obtain crucial evidence.

“Non-cooperation by the Kenyan Government has played its part in ensuring that the case against Mr Kenyatta was terminated and as such, the Applicant is fully cognisant of the importance of genuine state cooperation and the impact of non-cooperation on future cases at the ICC,” Otieno says in her request.

She also accuses Attorney General Githu Muigai of misleading the trial court that there was no basis on which the State could cooperate with the requests made by Bensouda,

But according to Ngunjiri, while amicus status is granted to a party that will provide specific expertise on particular topics, to add value to the case, the same cannot be said of AfriCOG on the current case.

“This (lack of providing expertise information) was the basis on which various applications for amicus curiae observations, including the ones by the CSO network and Kituo Cha Sheria on the case of the prosecutor versus William Ruto and Joshua Sang, were rejected on September 13, 2012,” the civil society group argues. The group contends that from its mandate, which is primarily governance and anti-corruption issues, AfriCOG does not present any specific expertise in the case.

But in her plea to the court, Otieno states: “We will detail the other various instances of non-cooperation, including the failure to freeze the assets of Mr Kenyatta, which may allow the Appeals Chamber to grasp the context in which these actions have taken place.”

Efforts to reach Otieno yesterday to respond to Change Associate’s allegations of relying on falsehoods were futile as she did not respond to our numerous calls and text messages.