The International Criminal Court will re-examine whether Kenya failed to cooperate in a case of crimes against humanity against Kenyan President Uhuru Kenyatta.
The appeals decision refers to whether Kenya obstructed evidence that ICC prosecutors say they needed to build their case against Kenyatta. Presiding Judge Silvia Fernandez read the decision that concludes trial judges made mistakes.
“The appeal chamber finds that the trial chamber erred in the exercise of its discretion by conflating the non-compliance proceedings with the criminal proceedings against Mr. Kenyatta, by failing to address whether judicial measures had been exhausted, and by assessing the sufficiency of evidence and the conduct of the prosecutor in an inconsistent manner,” the judge said.
Kenyatta had been charged as an “indirect co-perpetrator” in violence following Kenya’s 2007 election. But last December, ICC prosecutors dropped charges of crimes against humanity against him, accusing the Kenyan government of blocking their investigations. He has maintained his innocence and the government said it complied with prosecution demands.
Judge Fernandez ordered the lower court to reconsider its decision not to report Kenya to the ICC’s governing body for non-compliance.
In Nairobi, Amnesty International’s East Africa campaigner Victor Odero reacted cautiously, saying the rights group is waiting for the trial court’s reconsideration of its ruling.
“Amnesty International’s position is that states have to respect and abide by the obligations and international human rights law. And this is in fact the matter to be determined. Whether Kenya abided by its obligations in the statute,” Odero said.
The ICC has made non-compliance referrals to the governing body before, including on cases dealing with Sudan, Chad and the Democratic Republic of Congo. That body can then impose sanctions, but so far has not done so. Kenya’s Deputy President William Ruto is still on trial at the ICC on charges similar to those against Kenyatta.