The struggle between the International Criminal Court and the Kenyan state is not over.
The ICC is threatening to sanction Kenya if three Kenyans are not extradited to the Hague to answer charges of witness tampering.
On Saturday, President Uhuru Kenyatta declared that no Kenyan will ever face trial at The Hague following the termination of the cases against Deputy President William Ruto and broadcaster Joshua arap Sang on April 5.
“I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter,” Uhuru told a thanksgiving rally in Afraha stadium, Nakuru.
However the ICC has told the Star that it is aware of the statement attributed to President Kenyatta but that Kenya now risks being being sanctioned at the Assembly of States Parties for non-cooperation.
“In case of non-cooperation, the legal procedure before the ICC is for the Judges to make a finding of non-compliance and to refer it to the Assembly of States Parties to the Rome Statute for the Assembly to take any measure it deems appropriate,” ICC Spokesman Fadi El Abdallah told the Star.
The ICC wants the government to extradite three Kenyans are accused of witness tampering in the Ruto case.
The ICC issued arrest warrants against former journalist Walter Barasa in 2013 and against lawyer Paul Gicheru and Philip Bett in October 2015.
A separate decision by ICC Judges to refer Kenya to the ASP or not for allegedly obstructing access to crucial evidence against Uhuru is still pending.
ICC prosecutors claim the Kenyan government had blocked their access to police officers who witnessed the violence of 2007, and ignored repeated requests for documentary evidence, including crucial financial statements and cellphone records.
On Saturday Uhuru said the country’s own judicial system would deal with the three Kenyans wanted by ICC over claims of witness tampering.
“Haturudi uko. Ilikwisha na imekwisha (We are not going back. It is over),” said the President to thunderous applause from the mammoth crowd at Afraha.
Yesterday, Fadi said the ICC has not received any official communication from the Kenyan government indicating its intention to stop cooperation with the Court.
From a legal perspective, Fadi said, Kenya is a state party to the Rome Statute and has the legal obligation to fully cooperate with the ICC including implementation of arrest warrants.
“The ICC has not received any challenge to the admissibility of the cases against the three individuals charged with offences against the administration of justice consisting in corruptly influencing, or attempting to corruptly influence, three ICC witnesses in the context of the cases arising from the investigations in the Kenya post-elections violence,” Fadi said.
“ It is important that these serious allegations are properly adjudicated in a judicial process,” he said.
The Assembly of State Parties is the ICC's 'General Assembly' and is charged with management and oversight, including non-compliance with court requests.
However legal experts say that the 123 signatory states in the ASP lack enforcement powers and may not be able to force Kenya to comply.
“I'm not sure what the ASP can do, other than issue statements and try to make sure that its individual member states take action to encourage Kenya to cooperate with the court,” said Mark Kersten, a doctoral researcher at the Munk School of Global Affairs in Toronto.
Luke Moffett, a law lecturer at Queen’s University in Belfast, said he would expect the ASP to respond to any future referral by issuing a statement calling on Kenya to cooperate with the ICC.
“The ASP is perhaps toothless, but not entirely useless,” he observed. “It may not be able to bite a state through sanctions, but its bark of highlighting non-cooperation of a state party can bring international condemnation, public outcry, and media attention.”
Supporters of Uhuru and Ruto are still pushing for Kenya to withdraw from the ICC despite the crimes against humanity charges against them being dropped.
The African Union this month supported calls for a withdrawal from the ICC unless immunity is granted to heads of state and senior officials.
However any withdrawal would not halt the extradition cases against Barasa, Gicheru and Bett.
According to the Rome Statute, a country may withdraw from the ICC by writing to the Secretary General of the United Nations. The withdrawal takes effect one year after the receipt of the letter.
The country still has to cooperate with the ICC after withdrawal on any matters that arose before it pulled out.
“A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued,” Article 127 of the Rome Statute states.
ICC Chief Prosecutor Fatou Bensouda has not ruled out the possibility of preferring fresh charges against Uhuru and Ruto.
“We are currently in the process of carefully assessing the Trial Chamber's decision to determine the appropriate next steps,” she said after the charges against Ruto were dropped on April 5.
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