International Criminal Court chief prosecutor Fatou Bensouda. FILE PHOTO | NATION MEDIA GROUP
The ICC judgement this week on Kenya’s alleged non-co-operation will be significant in clarifying the possible sanctions that may await States Parties that default on their obligations to the court.
ICC Appeals Chamber will deliver its judgment on Wednesday at 10am in an appeal by Prosecutor Fatou Bensouda.
She wants it declared that Kenya failed to cooperate and that it sabotaged investigations.
“The significance of the ruling lies is that it may clarify when a State Party fails to co-operate with the court. The Rome Statute generally talks about referring a non-co-operative State Party to the Assembly of State Parties but it is silent, or even vague on the possible sanctions,” human rights lawyer Njonjo Mue said.
The Assembly of State Parties is the political arm of the International Criminal Court. It is composed of countries that are members to the Rome Statute.
Should Ms Bensouda’s appeal be upheld, Mr Mue said the court will be breaking new legal ground where the judges sanction a non-co-operative State Party by referring it to other members in a political environment.
“If the prosecutor’s appeal fails it will embolden State Parties that they can sabotage investigations and nothing will be done to them,” he added.
According to lawyer Evans Monari who represented former Commissioner of Police Hussein Ali at the court, it is going to be a landmark judgement that will guide the relationship between the State Parties and the ICC.
“If the prosecution’s position is upheld by the Appeals Chamber, the ASP can escalate the matter to the UN Security Council,” he said.
Ms Bensouda submitted that the government’s reluctance to fully co-operate with the court led to the termination of Uhuru Kenyatta’s case. He had been charged with crimes against humanity in the 2007/08 post-election violence.
Ms Bensouda accused the government of failing to give her details of President Kenyatta’s assets.
In addition, the Africa Centre for Open Governance (Africog), in an amicus curiae submission, had stated that the government failed to let the ICC prosecutor obtain statements from senior police officers who were in the areas most hit by the violence.
Furthermore, Africog boss Gladwell Otieno had argued that the government had declined to freeze President Kenyatta’s assets as had been requested by the ICC.
The judgment will however have no impact on President Kenyatta’s case that has been withdrawn. But it will be relied upon in the ongoing and future cases at the ICC, including the charges against Deputy President William Ruto.
The ruling will come just a week after Assembly of State Parties President Sidiki Kaba met President Kenyatta in Nairobi. President Kaba later met African Union officials in Addis Ababa.
“He is trying to reach out to African countries as he had promised at his election in 2014,” said Mr Mue.
Meanwhile, the ruling on whether or not the ICC will allow Ms Bensouda to make use of the prior recorded statements of witnesses who either recanted or withdrew from testifying is still awaited.
Mr Ruto’s lawyer Karim Khan and the legal representative for the victims in the case, Wilfred Nderitu, have both said the ruling was expected any time from the second week of August.