International Criminal Court (ICC) Prosecutor Fatou Bensouda has been allowed to appeal a decision declining to refer Kenya to the Assembly of States Parties (ASP) for non-cooperation in the case against President Uhuru Kenyatta.
In granting the application, Trial Chamber V (b) judges allowed the prosecution to challenge its December 3, 2014 decision in which the court declined to refer Kenya to the ASP.
“Trial Chamber V (b) considered the request and the observations made by the Kenyan Government and the legal representative of the victims. The chamber decided to authorise the prosecutor to appeal the decision on Kenya’s cooperation,” the judges ruled.
Once the prosecution appeals, the chamber will decide “if the chamber has discretion to make a finding of non-compliance, and to refer the matter to the 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.”
Trial Chamber V (b) explained that it allowed the prosecution to appeal its decision because it had raised issues that affected the conduct of the proceedings in the case against Kenyatta.
It further stated that though the prosecution had withdrawn charges against the president, it did not mean that investigations against him could not continue.
The chamber led by Presiding Judge Kuniko Ozaki also noted that the Government of Kenya was obliged to cooperate with the court hence its approval of the prosecution’s appeal to refer it to the ASP.
“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,” they noted.
According to the judges, there are set mechanisms that give guidance on the process of a referral to the ASP where matters of non-cooperation arise.
“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,” they explained.
Bensouda in her application on November 29, 2013 asked Trial Chamber V (b) to allow her to refer Kenya to the ASP over failure to cooperate as required under the Rome Statute.
She argued that the Government of Kenya had refused to submit to her office important documents which she required to solidify her waning case against President Kenyatta.
During two status conferences held to fast-track the progress of her office in preparing for the trial against President Kenyatta, Bensouda accused Kenya of withholding his bank records, land ownership records, vehicles within his possession and among others, companies in which he is a shareholder.
When she withdrew charges against the president on December 5, 2014, Bensouda said her case collapsed because Kenya refused to give her evidence that would have made her case water-tight.