An appeal by the Prosecutor of the International Criminal Court against the decision by the judges not to refer Kenya to the Assembly of State Parties could give her the ammunition to build a fresh case against Kenyan President Uhuru Kenyatta.

Fatou Bensouda had wanted the government of Kenya referred to the Assembly of State Parties for failing to provide the Office of the Prosecutor with the documents and information she had sought in relation to the crimes against humanity charges against President Kenyatta.

This application was rejected on December 3, when the judges ruled that they were dissatisfied with the Prosecution’s “somewhat complacent approach towards the explanations provided by the Kenyan government in relation to certain of the eight categories of requested materials.”

In the Chamber’s view, the issue of the Kenyan government’s non-co-operation with the request for records should have been addressed at a much earlier stage; doing so would, to a significant degree, have mitigated the impact that the non-compliance has had on the proceedings in the case.

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But in spite of declining to refer Kenya to the ASP, the Chamber found that the approach of the government “falls short of the standard of good faith co-operation required under Article 93 of the Statute.”

“The Chamber considers that this failure has reached the threshold of non-compliance required under the first part of Article 87(7) of the Statute.

In the Chamber’s view, in the context of a cooperation request under Article 93 of the Statute, where co-operation may be a question of degree and where it was apparent to the prosecution from an early stage that the Kenyan government was repeatedly presenting obstacles to the execution of the request, “a detailed and specific examination of the reasonableness of the positions presented by the Kenyan government was required.”

The judges also noted that while the considered factors do not excuse the conduct of Kenya, they have influenced the Chamber in the exercise of its discretion under Article 87(7) of the Statute.

“The Chamber emphasises 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.”

It is on the finding of non-co-operation that Ms Bensouda seeks to base her appeal, which, if successful, would compel the Trial Chamber to refer Kenya to the Assembly of State Parties.

Once the court finds a state party in breach of its obligation to co-operate with the ICC and refers the matter to ASP, it becomes incumbent upon the state parties to use diplomatic and political means to ensure compliance by the non-complying state. These could range from soft powers, such as persuasion, to hard options such as sanctions.

The President of the Assembly can write to the state concerned, reminding it of the obligation to co-operate and requesting its views on the matter within a specified time limit of no more than two weeks. The President of the Assembly could send a copy of the letter to all state parties, encouraging them to raise the matter in bilateral contacts with the requested state, where appropriate.

Legal experts say such an eventuality could put more pressure on Kenya.

Ms Bensouda is seeking leave to appeal the decision on two issues; (a) “Whether the Trial Chamber had already made the requisite findings under Article 87(7) that the government of Kenya failed to comply with the Prosecution’s request to co-operate and thereby prevented the court from exercising its functions and powers under the Statute, such that it ought to have referred the GoK to the ASP.”

(b) That “Even if the Trial Chamber had discretion not to enter ‘formal’ findings under Article 87(7) and thereby refer the government of Kenya to the ASP, whether it erred in the exercise of its discretion by taking into account or giving weight to extraneous or irrelevant considerations, or by failing to take into account or give sufficient weight to relevant considerations.

“As acknowledged by the Trial Chamber itself, a finding of non-co-operation under Article 87(7) is “concomitant” with a referral of the nonco-operating state to the ASP. As such, the issues significantly impact on the fair and expeditious conduct of the co-operation proceedings between the Prosecution and the government of Kenya. In addition, the immediate resolution of the issues by the Appeals Chamber will materially advance the proceedings.”

To file responses

The Trial Chamber V(b), on December 10, invited Kenya to file its observations on the Prosecution’s leave to appeal request, not later than December 22, 2014; and representatives of the victims to file any responses not later than January 6, 2015. Kenya’s Attorney-General Prof Githu Muigai maintains that the government has co-operated fully with the court.

“What the Kenyan government did in relation to the two Kenyan cases was unprecedented in the history of the court in that the government gave extensive materials, including those of the National Intelligence Service. We have also provided extensive video links and rules in the Ruto and Sang case. To call this non-co-operation is untruthful,” said the AG.

In her statement after she withdrew the charges against President Kenyatta on December 5, Ms Bensouda said, “The withdrawal of the charges does not mean that the case has been permanently terminated. Mr Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered.”