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ICC moves to review Kenyatta case

Ole Tangen JrAugust 19, 2015

Judges in The Hague were told Wednesday to review why Kenya was not referred to the court’s oversight body after prosecutors claimed that the country obstructed the investigation into Kenyan President Uhuru Kenyatta.

Uhuru Kenyatta President of Kenya
Image: Getty Images/AFP/S. Maina

The Kenyan president was charged by the International Criminal Court (ICC) in The Hague with being behind the post-election violence in Kenya in 2007. That violence killed over 1,000 people and displaced around 600,000. The case collapsed in 2014 and charges were withdrawn against the president.

According to the appeals court in The Hague which issued the decision, judges overseeing the case did not follow up on charges from prosecutors that Kenya failed to cooperate in the investigation of Kenyatta. An ICC tribunal initially chose not to pursue the claims against Kenya.

Prosecutors claimed that Kenyatta's financial records, phone statements and other documents were never handed over and that this evidence could prove their crimes against humanity case against the president.

ICC chief prosecutor Fatou Bensouda said after dropping the charges that she had "persistently sought to secure cooperation that my office required from the government of Kenya in this case in order to execute my mandate."

If a state fails to cooperate with the court it can be reported to the Assembly of State Parties, the ICC's governing body, or to the UN Security Council for "non-compliance." The Security Council does have the power to impose sanctions or other penalties on "non-compliance" countries but has never done so.

Legal or political?

Nairobi lawyer Franklin Kiprotich believes that this move was connected to a recent petition to the court by victims of the violence.

“We are currently awaiting a ruling whether the post-election violence victims' lawyer will be given the go-ahead to have the prosecutor reinvestigate the case afresh,” said Kiprotich.

Member of Parliament Esseli Simiyu does not think that the ICC should use this move as a reason to bring the trial back to court.

"Referring it back to the trial chamber, meaning to start another trial of President Uhuru, I would call that a miscarriage of justice," said Simiyu who is a member of the opposition party FORD-Kenya.

The ICC said that a ruling on Wednesday's request will take place in “due time.” DW spoke to some Kenyans in the capital of Nairobi to get their response to the news. Many felt that if the evidence is there, then Kenyatta should be brought to justice.

“Kenyans we like to violate the law. As far as the ICC is concerned, I think it is good to revive this case. Reviving it would help people to honor the rule of law,” said one Nairobian.

The next step

Many Africans resent the ICC and believe that the international community is meddling in the affairs of sovereign African countries. Almost all of those charged by the ICC have been from Africa and only two people have been convicted since the court was founded in 1998.

Mark Ellis, executive director of the International Bar Association, believes that the prosecution had a good case but was never able to collect all of the evidence. He sees this latest move as a small but significant step which could lead to the case being retried.

International Criminal Court in The Hague
International Criminal Court in The Hague has tried only a handful of cases.Image: picture-alliance/dpa/B. Maat

“That's important because it would then allow at least an opportunity for the Assembly of State Parties to pressure Kenya to cooperate with the court,” said Ellis.

However Ellis is still skeptical that, taken the history of non-action on other “non-compliance” states, any sort of action will be taken. He also stressed that this action by the court does not mean that President Kenyatta is guilty.

“The fact remains that there is a responsibility on the behalf of Kenya to cooperate with the court and this is what the issue is about right now,” he said.

James Shimanyula contibuted to this article.