This following is the third post in a three-part series in which Thomas Obel Hansen explores the recent referral of Kenya to the International Criminal Court’s Assembly of States Parties. The referral followed a finding by ICC Judges that the government of Kenya failed to cooperate in the case against President Uhuru Kenyatta. The previous two installations in this series can be found here and here.

Walter Barasa is among those charged by the ICC with interfering with witnesses in the case against Uhuru Kenyatta (Photo: Standard Media)

Following the two previous posts on the recent decision of ICC judges to refer the Government of Kenya to the Assembly of State Parties (ASP) for its failure to comply with its obligations under the Rome Statute in the Kenyatta case, this final comment addresses the implications the decision may have for the ongoing cases involving witness corruption and obstruction of justice that have been brought in the Kenyan situation.

The second post in this series concluded that, other than re-opening the debate of what went wrong in the Kenyan ICC cases, the Trial Chamber’s referral of Kenya to the ASP is unlikely to result in Kenya being seriously sanctioned for its failure to comply with the ICC’s Rome Statute. Therefore, in by itself, the Court’s decision is unlikely to make Nairobi fundamentally change its policy towards the ICC. However, this conclusion may be subject to an important qualification, namely that Kenya will likely take seriously the referral’s potential impact on the cases relating to corruptly influencing ICC witnesses in the Kenyan situation. The cases, involving three Kenyan nationals, Walter Barasa, Paul Gicheru and Kipkoech Bett, are based on allegations that their crimes were part of a broader and systematic scheme aimed at bribing Prosecution witnesses to change or recant their testimony.

Kenyan officials have earlier indicated that they are not willing to hand over Barasa, Gicheru and Kipkoech to the ICC. In April this year, Kenya’s Attorney General, Githu Muigai, stated that it is the government’s “position that the charges against the three suspects are for crimes that fall within Kenya’s normal criminal justice jurisdiction and can thus be effectively prosecuted and adjudicated domestically.” Around the same time, President Kenyatta made similar comments, though in less explicit terms, noting: “We have our own courts, we will sort out our own issues. I don’t want to see any Kenyan going out there again, we are not going back there…that chapter is closed…”.

ICC spokesperson, Fadi El Abdallah, responded soon after that the Court “is aware of the news reporting an alleged statement by the President of Kenya declaring that Kenya will not cooperate with the ICC in the future with relation to the implementation of three pending arrest warrants for Mr Barasa, Mr Gicheru and Mr Bett.” He also noted that the Court had not received any official information from the Kenyan government indicating its intention to stop cooperating in these cases, but it had also not received any challenge to the admissibility of the cases, which would be necessary if Kenya was to “take over” prosecution of the three suspects.

Little information is available concerning measures taken by the ICC since then to facilitate handing these suspects over to the Court, although Chief Prosecutor Bensouda stated in a June 2016 interview that she continues “to urge the Kenyan authorities to surrender these individuals to the ICC for trial”.

It appears there has been an impasse on these cases for some time. The Trial Chamber’s 19 September decision may just change that. The decision concludes that the “ASP would be best placed to address the lack of cooperation, in order to provide an incentive for the Kenyan Government to cooperate with the Court, in relation both to the Revised Request and more generally”. The emphasized part of that sentence is significant, and should be read in light of para 35 of the decision:

While the Chamber’s [earlier] acknowledgement of the relevance of the requested materials was solely with regard to the already terminated case against Mr. Kenyatta, the Chamber has no reason to deny its relevance for any of the ongoing and/or future investigations in the Kenyan situation. Indeed, considering the relevance of the materials sought in the Revised Request to the case against Mr. Kenyatta, it is likely that such request would also be relevant for current or future investigation in the cases arising from the same situation. In any case, the Chamber finds that, in general, the lack of bona fide cooperation by the Government of a situation country, as shown by the Kenyan Government in this instance, may have a serious impact on the functioning of the Court in future proceedings. Therefore, notwithstanding the passage of time, and having regard to the nature of the non-cooperation at issue, the Chamber finds it appropriate for the lack of cooperation in this case to be further addressed.

Whereas no one really believes the GoK will provide the requested evidence relating to the Kenyatta case, the above hints that the main goal of the ASP referral is to facilitate cooperation in other cases, perhaps the Article 70 cases in particular. The dialogue with Kenya within the ASP framework that will follow the referral could, at least in principle, work to add pressure on Nairobi to cooperate with respect to the Article 70 cases.

The extent to which such pressure will actually be exercised, and if so whether Kenya will give in to such pressure, remains to be seen. The latter will depend on how seriously Kenya views these cases compared to a potential stand-off with the ASP. Although Barasa, Gicheru and Bett are “small fish”, one reason for the GoK’s unwillingness to surrender them to the ICC is likely that their prosecution could confirm the Prosecutor’s version of events, namely that interference with witnesses is a key reason for the collapse of the PEV cases. More importantly, public hearings in these cases could potentially point to the involvement of Kenyatta and Ruto’s aides in the alleged scheme of witness interference, though such allegations have not yet been specifically made by Court officials. As summarized here by one the legal representative of victims in the Kenyan cases, judges have however noted “a coordinated effort to bribe witnesses, in order to prevent them from appearing in court”; “the interference and political meddling” in the cases; and “the unseen hands that had engaged in witness interference, the obvious aim of which is to frustrate the trial of the accused”. If the Article 70 cases are taken forward, this could not only be an embarrassment to Nairobi, but could also lead to debate about whether new Article 70 cases should be brought against more senior government figures.

Whereas the ICC has already “lost” to Kenya in terms of ensuring accountability for the post-election violence, we are yet to see who will ultimately come out victorious in the new “battleground” created by the ASP referral. If nothing else, as I argued in the first post on the Trial Chamber’s decision, the ASP referral will generate new debate about what went wrong in the post-election violence cases, and as pointed to in this post, add a new dimension to Kenya’s cost-benefit analysis of cooperation in the Article 70 cases. The big question is whether such strategic thinking within the Court is helpful for international justice as a whole if, as I speculated in the second post, it comes at the price of clear and swift sanctioning of States that fail to cooperate with the Court.