The ruling came on a day the battle between ICC Prosecutor Fatou Bensouda and President Uhuru Kenyatta’s government was renewed.
The ICC Appeals Chamber did not find that the Kenyan government failed to co-operate with the prosecution on President Kenyatta’s case.
However, the decision to order the trial judges to reconsider their ruling – rejecting the prosecutor’s application for referral of the matter to the Assembly of States Parties – kept Bensouda’s case alive.
The dispute stems from claims that the Kenyan government failed to comply with a request to produce financial and other records relating to Uhuru.
International Criminal Court (ICC) trial judges will reconsider the prosecution’s claims that the Kenyan government obstructed its investigations into the case against President Uhuru Kenyatta prompting the withdrawal of the charges against him.
The ICC Appeals Chamber yesterday granted Chief Prosecutor Fatou Bensouda a lifeline to have the judges review her allegations that the Kenyan Government had failed to comply with a request to produce financial and other records relating to President Kenyatta.
In a decision delivered yesterday by Presiding Judge Silvia Fernadez de Gurmendi, the chamber granted only one of the two requests made by Bensouda in her appeal against the trial chamber’s failure to refer Kenya to the Assembly of State Parties (ASP) over alleged non-cooperation.
The chamber agreed with the prosecutor that the lower chamber erred in its determination by considering irrelevant matters.
It, however, rejected Bensouda’s argument that a finding of non-compliance by the lower court ought to attract automatic referral to the ASP.
To Bensouda’s relief, the appeals chamber referred the matter back to the trial chamber for re-consideration.
“In the present case, it is appropriate to reverse the decision and to remand it for the Trial Chamber to re-determine in light of all relevant factors,” the chamber said yesterday.
Bensouda’s bid to refer Kenya to the ASP, the court’s legislative and political organ, was thwarted earlier in the year when the trial chamber deployed its discretion against her wishes.
The trial chamber agreed Kenya had failed to co-operate with the Bensouda and that this dented the court’s ability to determine the truth. They, however, declined to refer the matter to the ASP anyways, citing discretion as well as other factors.
Bensouda appealed, arguing that a finding of non-co-operation presupposes an automatic referral to the ASP.
The five judges said the object and purpose of Article 87 of the Rome Statutes ‘Requests for Co-operation” provisions is to foster co-operation. They said referral to ASP was not intended to be the standard response to each instance of non-compliance.
In granting the prosecutor’s second request, however, the judges said the trial chamber erred by mixing up the non-co-operation case with the main case against President Kenyatta.
They referred the matter back to the trial chamber but with express instructions to take into account all relevant factors, including the evidence that was required in the co-operation request and the conduct of the parties to the proceedings.