International Criminal Court (ICC) member countries should address the court’s finding of obstruction by Kenya in the case against President Uhuru Kenyatta, Human Rights Watch said today. An ICC trial chamber on September 19, 2016 referred a finding of non-cooperation in the now-withdrawn case against Kenyatta to the court’s membership, known collectively as the Assembly of States Parties.
“The ICC has squarely called out Kenya’s breach of its obligations to the ICC,” saidElizabeth Evenson, associate international justice director at Human Rights Watch. “ICC member countries should make sure the message is heard in Nairobi that they will not turn a blind eye to the government’s obstruction of justice.”
ICC judges in January 2012 had charged Kenyatta, then deputy prime minister and finance minister, with crimes against humanity for his alleged role in organizing and financing murder, displacement, and rape during the violence that followed Kenya’s 2007 presidential election. Although the prosecutor withdrew charges against Kenyatta in December 2014, the issue of whether the government of Kenya should be sanctioned for non-cooperation in the case remained pending.
This finding of “non-cooperation” is specific to the Kenyatta case, and relates only to Kenya’s failure to comply fully with the prosecution’s request for tax, bank, company, land transfer, and telephone records. Crimes against humanity charges in a parallel case against William Ruto, Kenya’s deputy president, and a co-defendant, Joshua arap Sang, werevacated for lack of evidence in April 2016.
When it comes to findings of non-cooperation on the part of ICC member countries, ICC judges have issued previous non-cooperation decisions against the governments of Chad, the Democratic Republic of Congo, Djibouti, Malawi, and Uganda for allowing President Omar al-Bashir of Sudan to visit their countries without facing arrest. Al-Bashir is wanted on two outstanding ICC warrants. A determination on South Africa’s cooperation is currently pending before the ICC regarding the failure of South Africa to arrest Bashir during a June 2015 visit to the country, in violation of both ICC obligations and two orders by a domestic court.
Previous Developments in the Kenyatta Case
In early 2014, as a February trial date neared, the prosecution admitted that its investigations had hit a dead end, partly because a key insider witness confessed to giving false testimony. In March 2014, judges granted a temporary adjournment in the trial to permit the prosecution and the government of Kenya to work together to resolve a long-outstanding request for Kenyatta’s financial and other records, which the prosecution hoped could provide additional evidence. When the vast majority of records had still not been produced by October 2014, the prosecution asked the judges to refer Kenya to the Assembly of States Parties for non-cooperation and adjourn the case indefinitely until the government complied.
In two December 2014 decisions, the judges rejected the prosecution’s request to postpone Kenyatta’s trial, finding that further delay – particularly since the prosecution was uncertain whether even full cooperation by the government would lead to sufficient evidence – would be incompatible with the interests of justice. They faulted Kenya for failing to provide records sought by the prosecution but decided not to send a formal finding of non-cooperation against Kenya to the assembly. They found that the non-cooperation did not warrant sanction due in part to concerns about the prosecution’s diligence in following up on cooperation requests and also given their decision not to further adjourn the case.
The ICC prosecution then withdrew its charges against Kenyatta. It sought leave to appeal the decision on non-cooperation, however, leading to the August 2015 ruling by the appeals chamber.