Kenya may face sanctions if it fails to cooperate with ICC

Kenya could be slapped with sanctions and risk being declared a pariah state, if it fails to cooperate with the International Criminal Court (ICC) by handing over three suspects facing charges of corruptly influencing prosecution witnesses. ICC spokesman Fadi El-Abdallah said the institution had not received any official notice from the government, indicating its intention to stop cooperating with court, despite President Uhuru Kenyatta’s declaration that no other Kenyan would stand trial at The Hague.

President Kenyatta’s statement at Afraha Stadium, Nakuru on Saturday has captured the ICC’s attention; it’s a pronouncement that captured the executive’s position on Kenya’s future relationship with The Hague-based court, following the termination of charges against all the six Kenyans accused of bearing the greatest responsibility over the 2007/08 post election skirmishes.

However, ICC through its spokesman Fadi El-Abdallah says Kenyatta’s statement had not been backed by any formal documentation that Kenya had cut links with The Hague-based court, and hence remained a bona fide state party to the Rome Statute.

Abdallah maintains that Kenya had an obligation to fully cooperate with the court, and facilitate the implementation of warrants of arrest against three Kenyans; Walter Osapiri Barasa, Paul Gicheru and Phillip Koech Bett. The trio is accused of corruptly influencing and tampering with prosecution witnesses in the case against Deputy President William Ruto and Joshua Arap Sang that has been declared a mistrial.

The High Court is yet to determine if Gicheru and Bett will be handed over to ICC to stand trial, while Barasa has filed a petition at the Court of Appeal opposing his extradition. Bensouda, however, accuses the Kenyan government of dragging its feet and a conspiracy to shield the three suspects from standing trial at The Hague.

ICC, however, says should the Kenyan government fail to surrender the three suspects, legal procedures could be instituted against the state, citing non-cooperation, and should the trial judges find Kenya culpable of abdicating its responsibility, it will refer the matter to the Assembly of State Parties to take action; this includes seeking diplomatic and economic sanctions, and turn Kenya into a pariah state.

International law practitioner Nabil Orina says Kenya can insulate itself against international sanctions, since it has jurisdiction over the charges that Barasa, Gicheru and Bett face at the ICC.

“Kenya can still prosecute them in local courts, if the DPP takes up the matter,” said Orina.

However, despite ICC’s threat to crack the whip on Kenya for non-cooperation, President Kenyatta’s statement on Saturday points to a planned withdraw from the Rome Statute, a position backed by the African Union Council of Ministers’ list of conditions if the continent was to remain a member of the court.