Kenya back on the ICC radar?

Kenya and the International Criminal Court never seem to disappoint when it comes to key judgments and developments. Last week the Court and the African country, with two people still in the docks for alleged crimes, had a busy week. On the schedule for Wednesday was the issue of referral for non-cooperation in the case against President Uhuru Kenyatta.

Ahead of the judgment, Justice Hub spoke to Elinor Fry about possible outcomes and what the judges were deciding on. Speaking to people in and around the Court ahead of the judgment there were three options on the table: refer Kenya to the ASP, send the referral issue back to the trial chamber or call it quits.

The "toothless punishment" the ICC could order for Kenya – being discussed tomorrow at the ICC @elinor_fry https://t.co/LXf1OzxrMW

— Janet H. Anderson (@janethanderson) August 18, 2015

But it wouldn’t be an ICC and Kenya issue if someone didn’t throw a curveball, catching lawyers, commentators and laymen off balance.

#ICC hearing on #Kenya referral to #ASP ends with jaws on the floor in the press room. Decision referred back to trial chamber – no date yet

— Jack Parrock (@jackeparrock) August 19, 2015

Instead of sticking to the agreed playbook, the Appeals Chamber went on to highlight several inconsistences in the original judgment by the trial chamber. According to the judges, these inconsistencies were so severe that they couldn’t guarantee that the ruling on non-compliance with the prosecution’s cooperation request was accurate.

#ICC appeal chamber — trial chamber errors affected a conclusive factual determination of #Kenya's cooperation, so issue gets sent back.

— Liz Evenson (@liz_evenson) August 19, 2015

As you might’ve noticed from the first few paragraphs, this was, and still is, a complicated issue. This led to confusion about what the judgment was actually about and to what extent things would be reviewed. It also led to a few selective readings of the judgment.

ICC Appeals Chamber says trial judges did not err by not sending Kenya to the ASP as requested by Prosecutor Fatou Bensouda.

— Oliver Mathenge (@OliverMathenge) August 19, 2015

Bensouda wins first round of battle to refer Kenya to ASP for noncooperation http://t.co/vTA1LVQD6F

— JFJustice (@JFJustice) August 20, 2015

But selective reading of these complicate decisions means that commentators usually paint themselves into corners, corners which are very difficult to get out of.

But a day of controversial decisions didn’t stop with the appeals judgment. A few hours later, the trial chamber in the case against Deputy President William Ruto made a long-expected, crucial decision. After months of deliberation, the Court allowed previously recanted statements from ‘hostile’ prosecution witnesses to be allowed into evidence.

#ICC lets in prior testimony in #Ruto case of recanting witnesses subject to improper influence and one who vanished. http://t.co/m09R2qPx3H

— Liz Evenson (@liz_evenson) August 20, 2015

ICC judges confirm what prosecution has been saying for years: witnesses interfered with in Kenya (Ruto) case. http://t.co/nV6Md8U88j.

— Alex Whiting (@alexgwhiting) August 20, 2015

Regardless of how you interpret the two decisions, it is clear that the Kenyan cases at the ICC are now back on the radar, moving from a blip on the perimeter to a key issue at the heart of the Court, the prosecution and the Kenyan government.

Two weeks ago the President of the Assembly of States Parties, Sidiki Kaba, went on a PR trip around Africa. His visit included a sit-down with several Kenyan leaders. Following last week’s rulings, he’s probably counting his lucky stars for the timing of his visit.

So…

What was your interpretation of the appeals judgment?
Did you see a clear ‘winner’ coming out of Wednesday?
What impact will the admitted evidence have in the Ruto/Sang case?

If you want to stay up to date on the latest developments in the Kenya cases, visit The Hague Trials Kenya.

Lead image: ICC Judge Silvia Fernández de Gurmendi (Photo: ICC-CPI)

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