Bensouda wants Kenya case cited at Assembly of States Parties

ICC Prosecutor Fatou Bensouda has asked the court to allow her to appeal its decision against declaring Kenya non-cooperative even as victims of post-election violence urged her to go for smaller fish.

Last evening, Ms Bensouda contested the decision of Trial Chamber V (b) to refuse referring Kenya to the Assembly of States Parties (ASP), saying the judges had made an error.

ACCUSED KENYA

The decision by judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson was made in March this year after the prosecutor accused Kenya of not complying with requests made by her office.

Trial Chamber V (b) rejected a prosecution request for a finding of non-cooperation against the Kenyan government and referral of the matter to the Assembly of States Parties to the ICC Rome Statute.  

On the same day, in a separate decision, Trial Chamber V(b) rejected the prosecution’s request for further adjournment of the case against President Uhuru Kenyatta and directed the prosecution to indicate either its withdrawal of charges or its readiness to proceed to trial.

At the time, Ms Bensouda argued that her office had been unable to get the required information from the Kenyan government concerning President Kenyatta’s past financial and communication dealings especially during the post-election violence.

TRAIL POSTPONED

She asked that Kenya be taken before the ASP as well as that Mr Kenyatta’s trial date be postponed indefinitely.

Last week, Ms Bensouda withdrew the charges against Mr Kenyatta after failing to convince the judges to postpone the case. She argued that she had insufficient evidence and that Kenya had frustrated her.

Still, she wants Kenya to be debated at the ASP, the creators of the Rome Statute, for a possible reprimand.

“The Trial Chamber thereby avoided the automatic referral to the ASP which would otherwise have been the inevitable consequence of its findings,” she argued.

She argued the refusal to refer Kenya was “a wrong decision on an issue in the context of article 82(1)(d) of the Statute unless soon remedied on appeal will be a setback to the proceedings in that it will leave a decision fraught with error to cloud or unravel the judicial”.

Yesterday, victims of post-election violence, through their lawyer, Mr Fergal Gaynor, demanded that Bensouda go after other perpetrators who had not been brought before the ICC or before local courts in Kenya.

In a response to the prosecutor’s decision to withdraw charges of crimes against humanity against Mr Kenyatta, Mr Gaynor said the survivors of the violence had received no justice from Kenyan judicial systems and that it would be a “betrayal” if the ICC walked away from them.

“The prosecution should bring charges against other mid- and high-level suspects for crimes committed in Naivasha and Nakuru.

‘‘To ensure that the best possible body of evidence reaches the Pre-Trial Chamber, existing investigations should be greatly intensified, on an urgent basis,” the victims' lawyer observed.

GAIN ACCESS TO EVERYONE

“It is imperative for the prosecution to take all action in the courtroom, and in the diplomatic arena, to ensure that it can gain access to every individual and every item necessary — wherever in the world they might be — to uncover the truth,” Mr Gaynor said

The lawyer compiled a set of views from victims shortly after the notice to withdraw charges was filed last week. Many of them accused the prosecutor of naivety for believing the government headed by Mr Kenyatta would fully cooperate.

In fact, some are bitter they were led on in a process that would eventually collapse when other alternatives like financial compensation were ignored.

But others want charges against Mr Kenyatta reinstated and witnesses who pulled out be forced to testify.