Kenya’s co-operation with the International Criminal Court in the case facing President Uhuru Kenyatta will be subject of deliberations at the status conference slated for early October.

The judges will then rule whether or not Kenya as a signatory to the Rome Statute has failed to co-operate with the court as provided for in Article 87 of the statute.

Should Kenya be found to have failed to co-operate with the court, legal experts argue that the judges could refer the case to the ICC Assembly of State Parties (ASP).

The Rome Statute requires States Parties to fully co-operate with the court in its investigation and prosecution of crimes within the jurisdiction of the court.

ICC Prosecutor Fatou Bensouda had on September 5 submitted that most of the records her office sought from Kenya have not been delivered and it would be inappropriate for the prosecution to withdraw the charges against President Kenyatta before the government of Kenya complies in full as required by the Rome Statute.

Article 87 (7) says that, “Where a State Party fails to comply with a request to co-operate 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 States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”

Maria Kamara, the ICC’s Outreach Co-ordinator for Kenya and Uganda, said it is up to the judges to assess and make a ruling after listening to all the concerned parties.

However, the government of Kenya through Attorney-General, Prof Githu Muigai, has maintained that the request for the records are against Kenyan laws. The next ASP session is scheduled for December this year.

Fergal Gaynor, the Legal Representatives of Victims, is however concerned with the prospects of the termination of the proceedings in account of the Kenya government’s refusal to comply.

He argues that the termination would be unfair to the victims of the post-election violence, and a further incentive to non-cooperation by Kenya with the ICC.

The African Union summit had in October 2013 passed a resolution that sitting African heads of state shall not appear before any international court during their term of office.

President Kenyatta has already requested ICC to excuse him from attending the status conference on October 8.

Instead, the President wants to be allowed to follow the proceedings via video link. He also wants Trial Chamber V (B) to reschedule the status conference to a date after October 9.

READ: Uhuru Kenyatta summoned to appear before ICC

The change of date would allow him to attend the East African Community Northern Corridor Infrastructure Summit in Kampala, Uganda, on October 8 and Uganda’s Independence Day on October 9.

In the event the chamber decides that he has to attend, President Kenyatta applied for the status conference to be rescheduled to a later date convenient to all parties.