On Wednesday, the Appeals Chamber of the International Criminal Court will announce its decision on whether to refer Kenya to the ICC’s membership for not honoring its obligations and cooperating with the prosecution in the now terminated case against President Uhuru Muigai Kenyatta.
This is the first time the Appeals Chamber is considering whether to refer a member of the ICC to the wider membership, or Assembly of State Parties (ASP) as it is formally known, for failing to cooperate following a request for such cooperation made under Article 93 of the Rome Statute, the ICC’s founding law.
The ICC has made referrals against other states in the past but for the more narrow issue of failing to execute arrest warrants. These referrals have been made to the United Nations Security Council because they involve the proceedings against Sudan’s President Omar al-Bashir for his alleged involvement in war crimes and crimes against humanity in the Darfur region of his country.
Currently before the Appeals Chamber is an appeal the prosecution filed on March 20 challenging Trial Chamber V(b)’s decision to not refer Kenya to the ASP after it found that the government made no credible justification for failing to provide five categories of records the prosecution had requested.
The appeal and responses to it center on the interpretation of Article 87(7) of the Rome Statute, which reads:
“Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of State Parties.”
On December 3, 2014, Trial Chamber V(b) found that the Kenyan government had not acted in good faith when it failed to provide five categories of records the prosecution had requested. The chamber also found that though the prosecution had said the documents were important to its case, the prosecution had been “somewhat complaisant” in pursuing the information it was seeking.
“While the factors considered above do not excuse the conduct of the Kenyan Government, they have influenced the Chamber in the exercise of its discretion under Article 87(7) of the Statute. The Chamber emphasizes that each application must be considered in its own particular context and, for the reasons described above, the Chamber does not consider it appropriate to make a referral of the matter to the ASP on this occasion,” the chamber said its unanimous decision.
ICC Prosecutor Fatou Bensouda has argued that her appeal is based on two grounds. The first is that the chamber did not have any discretionary power to decide whether to refer Kenya to the ICC’s membership. She argued that once the chamber had reached the decision that it did—that Kenya had failed to cooperate with the court—then the chamber was automatically required to refer the country to the ASP. On the second ground of appeal, Bensouda has argued that even if the Trial Chamber had discretion in the matter, it erred in exercising that discretion.
“For the reasons set out above, the Prosecution requests the Appeals Chamber to overturn the Decision to the extent that it held that it was not ‘appropriate to make a referral of the matter to the ASP on this occasion,’” Bensouda concluded.
Kenya’s Attorney General Githu Muigai, in response to the prosecution’s appeal, said that the chamber correctly interpreted the Rome Statute and that it was within the chamber’s discretion whether to refer Kenya to the ASP. He argued that the Appeals Chamber’s role is limited to considering whether the Trial Chamber exercised its discretion correctly and not whether the Trial Chamber’s decision was the right one. The attorney general also said that the Trial Chamber’s decision was correct, as when in reaching its decision, the chamber took into account the prosecution’s own assertion that their evidence was insufficient to reach the beyond-reasonable-doubt threshold required in the case against Kenyatta.
“In light of the foregoing, the Government of the Republic of Kenya respectfully requests that the Appeals Chamber to dismiss the Prosecution’s Appeal for failing to demonstrate .the essential requirements for review of the Trial Chamber’s exercise of discretion,” stated Muigai, concluding his April 8 response.
Fergal Gaynor, the lawyer for the victims registered in the case against Kenyatta, supported the prosecution’s appeal, arguing that referring a member of the ICC to the ASP was “vital to reduce the systemic risk of obstruction at the ICC.”
“If State interference with the collection of evidence emerges as a viable strategy in this case, this will almost certainly increase the likelihood that it will infect other cases. Left unrestrained, State obstruction of justice can and will defeat the Rome Statute’s structure of investigation and prosecution. This cannot be permitted to stand,” concluded Gaynor in his May 5 submission.
Kenyatta’s lawyers did not respond to the prosecution’s appeal, even though they had a right to. This has been the general approach of Kenyatta’s legal team from the time the prosecution first applied to the court to have Kenya referred to the ASP in December 2013. The only time Kenyatta’s legal team has made any submissions on the issue is during the status conferences Trial Chamber V(b) held on the issue during the course of last year.
In total, the Trial Chamber held four status conferences last year to discuss the prosecution’s request to Kenya to assist it in getting eight categories of records that it had first asked for in April 2012. The prosecution at the time said the records could either bolster its case against Kenyatta or diminish it, but the records were important for the prosecution to make a clear determination on this. The chamber held a status conference on this matter on February 5, 2014; February 13, 2014; July 9, 2014; and October 7.
During the process of this appeal, the Appeals Chamber also allowed individuals or organizations that wished to make submissions as friends of the court to apply to so by April 29. The Appeals Chamber received two such applications but only allowed one of the organizations that applied to make a submission.
Pan Africa Forum Limited applied to make submissions as a friend of the court, but the Appeals Chamber declined its application because it was filed on May 11, twelve days after the deadline the chamber had set. The Pan Africa Forum Limited’s director is David Matsanga, a Ugandan who is a vociferous critic of the ICC in the Kenyan media. Matsanga served at one time as a member of the negotiation team of the Ugandan rebel group, the Lord’s Resistance Army (LRA), during peace talks between the LRA and the Ugandan government between 2006 and 2008.
Africa Centre for Open Governance (Africog) submitted an application on April 29 and the Appeals Chamber allowed the organization to make submissions as a friend of the court. Africog is run by Gladwell Otieno, a prominent Kenyan civil society activist. Africog’s May 8 observations focused on what in its view is the context of Kenya’s alleged non-cooperation with the ICC. The observations include a narration of political violence around election time in Kenya since the return of multiparty politics in 1992. The observations also highlight the diplomatic efforts by the government to get the cases against Kenyatta and Ruto deferred as well as the lack of high-level prosecutions in relation to the violence that followed the December 2007 elections.
The issue of referring Kenya to the ASP was first raised by Muigai in an April 8, 2013 application to what was then Trial Chamber V, which handled both the trial proceedings against Kenyatta and the separate case against Deputy President William Samoei Ruto and former journalist Joshua arap Sang. Later in 2013, Trial Chamber V was split into two to handle the two separate Kenya cases.
Muigai made his April 8, 2013 application to challenge the prosecution’s repeated claims at the time that Kenya was not cooperating fully with the ICC. As he explained how the government had cooperated with the prosecution, Muigai also said that if the prosecution was convinced Kenya was in breach of its obligations then “the appropriate remedy is to seek the relief provided pursuant to Article 87(7) of the Statute.”
The court did not receive any further submissions on the matter until the prosecution applied in December 2013 to Trial Chamber V(b) to refer Kenya to the ASP and postpone the trial proceedings against Kenyatta. At the time the prosecution had argued that documents it had sought from the government were the only things standing between it and a decision whether to continue with pursuing the case against Kenyatta after two witnesses recanted their evidence him.
Trial Chamber V(b) terminated the case against Kenyatta on March 13 after the prosecution withdrew the charges against him on December 5. That decision followed the Trial Chamber’s own order to the prosecution on December 3 to determine within a week whether to pursue the case against Kenyatta or withdraw the charges against him.