Appeals Chamber to Decide whether to Refer Kenya to ICC Membership for Non-Cooperation

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.


  1. Our world is progressing towards the future, in our struggle between life and death. To impact the world, mandates have to be established too harness megalomaniacal dreams of leaders causing incalculable damage to their inhabitants, and the environment. These leaders must be accountable to a forum of specific venue, to save people, from tyrants (and monsters); slaving over them, with arrogance and greed. These leaders must follow the mandates, procedures, and rules, or suffer the consequence. Our leaders are put into power to cooperate amongst each other, and make our world a better place, for the next generation.

    Every person, and it doesn’t matter what part of the world you are from, or station in life, before you leave this planet, it must be better than before!

    Respectfully submitted,

    William James Journey

  2. Let them do what their conscience tells them.After all icc dwells on hearsays.Who carried out shoddy investigations?Was it uhuruto or icc?Whatever the outcome Kenya is a sovereign state and will not be ruled by a few individuals huddled in Hague-based court.

  3. Thanks for this update. We await the Appeals Chamber’s decision of what may appear like ratifying Kenya’s “collective criminal responsibility” for the post 2007 conflicts. Non-co-operation goes contrary to a member state’s Rome Statute obligations and is a procedural omission by contrast to the substantive characterization of “individual criminal responsibility.” It is unlikely that Kenya’s actions amount to non-co-operation. Strangely, a country need not comply with vague documents requests but nevertheless, still be found to be in compliance with its obligations. Not only has a previous judge, Christine Van Den Wyngaert chastised the prosecution for shoddy, negligent and tardy pre-trial investigations, but worse still Bensouda’s predecessor allegedly confessed on HARDtalk show that some envoys told or pressured him to select certain suspects for prosecution. Perhaps he was misquoted or I am wrong in my news. But it amounts to abuse of process for an independent prosecutor to lay charges without sufficient prima facie evidence that a properly directed judge is more likely than not to convict. It is plainly weird for the prosecutor not to have even interviewed the suspects to obtain their side of the story. Anyway most prosecutors the world over have their constraints so I cannot claim to be able to lambast Ocampo for doing a thankless job of vindicating victims justice where Kenyan ourselves may have neglected our own primary duty of preventing the conflicts in the first place. I wonder what Bensouda is trying to suggest by fishing for some of Kenyatta’s documents e.g. lands records or motor vehicles. It is no great secret that Jomo’s son is a very wealthy man. He is the scion of the portrait on the currency. Added to his own campaign for Gatundu south MP, he was President Kibaki’s chief campaign manager. No one would expect him not to contribute to “Operation Kibaki Tena.” No Kenyan presidential candidate can succeed without bankrolling his campaign with mobilization expenditure. I see noting sinister in the fact that some of his money supported Operation Kibaki Tena. Neither can it be inferred that all Kikuyu youth are necessarily Mungiki members. Even if some of these people may have had links with the Mungiki, it cannot be assumed that Kenyatta knew or should have known this. It amounts to prosecuting Kenyatta simply on account of his “status” as a rich man, rather than for his conduct, if the prosecutor suggests that he is “guilty by association.” the worst admission of all, it that she wants private persons like Safaricom, to disclose Kenyatta’s mobile telephone lines, the numbers he called and conversations he had. That demand clearly indicates that Ocampo commenced the case before investigating it. Clearly, any “evidentiary basis” was weak. Kenyatta appears to have been initially selected for prosecution mainly for purposes of balancing the ODM case with a PNU case so as to avoid ethnic polarization of Kenya. That at best amounts to a “public interest” basis. At worst, it seems like a conspiracy to defeat his 2013 presidential bid.

    This brings me to a second point. The prosecution’s discretion to prosecute may be less contested in Ruto and Sang’s submissions on “no case to answer” since Bensouda has laid a clear basis to claim that her key witnesses have either interfered with, whether by bribery, intimidation of execution. Indeed, many have died or disappeared. Eight recanted their initial statements to the prosecution. They declined to testify. When they did under disguised identities from safe havens they had to be declared hostile since by virtue of wholesale departure from their expected statements. Again the prosecution seems negligent for failing to video record their earlier cautions on oath and/or testimonies so that the court and/or public could determine if these were tendered voluntarily.

    What can we infer from the foregoing? Some of Bensouda’s confidants suggest that the real reason she is going after Kenya is to provide a basis for her prosecution of various agents such as one Walter Osapiri Baraza who she wants extradited for trial on charges of conspiracy to defeat the administration of justice. In this respect it is recalled that even before the Baraza fiasco, in 2011 Kenyan courts injuncted “extradition proceedings” which were underway before lady justice Kalpana Rawal (as she then was). ICC wanted to compel testimony by the security officials, Provincial administration, district officers and everyone who knew the security situation prior to the 2007 general elections. These High Court injunctions remain in force to date. Rawal was promoted to the Deputy Chief Justice. Meanwhile in 2014 the Presiding Judge at Milimani Court Richard Mwongo dismissed Baraza’s application to injunct his extradition proceedings before the Nairobi Chief Magistrates’ Court. To simplify: Baraza’s argument is that he cannot receive a fair trial before the ICC since it is an imperialist court. His appeal is pending before the Court of Appeal. It is unlikely that Kenya’s appeal court can rasonably hold that a suspect before an international court is unlikely to receive a fair trial. Such rubbish jurisprudence would make Kenyan law forever the laughing stock of humanity. The next best thing is to delay Baraza’s appeal until hell freezes over. Technically, just as Kenyans play decades of “merry-go-round” with Goldenberg, so also ICC are being jerked like a yo-yo in respect of waiting for Baraza’s extradition to be cleared, if ever. Yet an affirmative conviction by way of Baraza’s for conspiracy can vindicate the decisions to prosecute in the Kenya cases, and explain why they have failed despite expenditure ob billions.

    In my considered view, therefore, one indirect effect from accusing Kenya of non-co-operation in Kenyatta’s case, seems to be because Kenya’s judicial hierarchy have effectively frustrated the Ruto/Sang case. Clearly, here Kenya’s so-called respect for institutional checks and balances in its so called liberal democracy amounts to institutional non-co-operation with its duty to either “prosecute or extradite,” and to do so in real time. In that sense our dysfunctional courts, impoverished investigators and “see-no-evil, hear-no-evil” Director of Public Prosecutions must bear “collective national responsibility” for the failure of victim’s justice. However, this is such intricate logic that it is difficult for any non-specialist of constitutional law, administrative law, international law and criminal law to decipher the connections. Let’s cut to the chase.

    In conclusion, even assuming that the Appeals Chamber calls Kenya’s bluff and refers us to the ASP, “wata do nini?” Who doesn’t know who won World War II? And that what followed was “victor’s justice” by any other name? The UN Security Council which is ultimately responsible for enforcing world peace and security, mainly comprises the Allies i.e. US, UK, France as well as Russia and China. The last time I checked, no one had prosecuted either US or Israel who, by any standards. are the world biggest perpetrators of crimes against humanity. Neither has anyone bothered with citing Syria despite its killing of 200,000 and displacement of millions. Why? Russia would veto such a resolution. Recent event such as the ICC President’s visit to Kenya last week which followed US President’s opening of the Global entrepreneurial Summit, or even the Pope’s visit in November shows that we too have friends in low places.

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