Kenya is not yet off the hook after top International Criminal Court judges revived a case that could see the country reported to the UN for allegedly refusing to help the court gather evidence against President Uhuru Kenyatta.

ICC appeal judges reversed a decision by a lower court which had decided not to report Kenya for not helping the court in its investigations. They ordered the case to be returned to the trial chamber for the judges to look at it afresh and determine whether Kenya should be reported.

Once reported to the UN Security Council, the country could face sanctions.

The prosecutor, Ms Fatou Bensouda, was not spared either. The judges found that the prosecution had flouted rules on the length of an appeal.

They also dismissed an application by the Kenyan NGO Africog, as “unhelpful” and not worthy considering or making a finding over.

Referral is a political step and will not have any direct effect on the withdrawal of the case against President Kenyatta.

Be heard afresh

The first step would be to report Kenya to the Assembly of State Parties, the grouping of nations forming the ICC, of which Kenya is a member.

In the extreme, the government could be reported to the UN Security Council where sanctions could be applied after a vote.

Security council votes are tricky. They require all five permanent members, who have veto powers, to agree.

As a result of Wednesday’s ruling, the case will now be heard afresh. The appeal judges said regardless of the withdrawal of the charges against President Kenyatta, “the Trial Chamber was and remains competent to decide on whether it would be appropriate to refer Kenya’s non-compliance to the ASP either to seek a concrete remedy for the lack of cooperation in the case at hand or to foster cooperation more broadly for the sake of any proceedings arising out of investigations in the situation”.

However, they rejected Ms Bensouda’s argument that the decision to report a country to the ASP is mandatory, ruling that it is up to the trial judges to decide.

A summary of the unanimous appeal decision was read in open court yesterday by the President of the ICC and the presiding judge in the matter, Judge Silvia Fernández de Gurmendi.

Other ICC appeal judges are Sanji Mmasenono Monageng, Howard Morrison, Piotr Hofmaski and Bertram Schmitt.

In her appeal that was supported by the victims’ lawyer Fergal Gaynor, Ms Bensouda had argued that once the Trial Chamber had determined that Kenya had failed to cooperate fully with the court, it had no option but to refer Kenya to the ASP for disciplinary measures.

In the judgment, the Appeals Chamber found that the Trial Chamber erred by “conflating” non-compliance proceedings and proceedings against an accused before the court.

The two, according to the judges are separate and cannot be taken together. A case on failure to cooperate is filed against a State while the case against President Kenyatta was about an individual, they said.

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