The International Criminal Court and Kenyatta
By Shakira Maria Bedoya Sanchez, Postdoctoral Fellow, PluriCourts
On December 5, 2014, Fatou Bensouda, chief prosecutor for the International Criminal Court, filled a three-paragraph notice withdrawing the charges against the Kenyan President Uhuru Kenyatta. He had been accused of instigate violence that followed Kenya’s presidential election in 2007 that left 1,000 dead and over 600, 000 displaced and charged with the crimes against humanity of murder, deportation or forcible transfer, rape, persecution and other inhumane acts. The withdrawing of charges comes at a time when the ICC is facing extreme criticism, especially regarding the disproportionate targeting of African States. In October 2013 the African Union passed a resolution deciding that “no charges shall be commenced or continued before any international court or tribunal against any serving head of state or Government or anybody acting in such capacity during his/ her term of office.” 
Bensouda’s decision was the result of the Trial Chamber rejection on the Prosecution’s application for a finding of non-compliance under Article 87 (7) of the Rome Statute, issued two days before, on December 3, 2014.
The procedural history of the trial chamber rejection started in November 2013, when the prosecution filed a confidential ex parte, arguing that the Kenyan government failed to comply with an initial request, issued in April 2012 under article 93 (1) of the statute, to produce financial and other records relating to the accused.
On March 31, 2014, the chamber adjourned the provisional trial commencement date to October 7, 2014, to allow further time for the resolution of certain cooperation matters between the Kenyan Government and the Prosecution. On April 8, 2014, the prosecution transmitted a revised request to the Kenyan Government, that according with the Chamber was subjected to dispute on “i) the specificity, relevance and necessity of particular information sought in the Revised Request; and ii) the appropriate time period to be covered by the requests”.
In September 2014, the Chamber issued an order vacating the trial commencement date of 7 October and scheduled two additional status conferences. Interestingly enough, the Chamber observed that the power to make a finding of non-compliance under article 87 (7), and to refer the matter to the Assembly of State Parties (ASP) or the Security Council, were of a discretionary nature.
In this context, a state has failed to comply with a request for cooperation, “and this failure has prevented the Court from exercising its functions under the statute, the Chamber has to consider whether making a finding pursuant to article 87 (7) of the statute is appropriate in the circumstances”. The Chamber noted additionally that the cooperation is a continuous process, so “the determination is case-specific, and determining that a degree of non-compliance has occurred may not, in itself, be sufficient to necessarily trigger a referral”.
These were the considerations that guided the Chamber’s analysis to assess the appropriateness of making a decision under article 87 (7) of the Statute overseeing the eight categories of records sought originally by the revised request, namely:
“1) the identification and provision of records of companies, businesses, partnerships or trusts in which the accused has an ownership interest, directly or indirectly, whether as shareholder, director, officer of the company, partner, trustee, beneficiary or otherwise between 1 June 2007 and 15 December 2010 ('Company Records' and 'Other Entities');
2) the identification and provision of records relating to land and real property belonging to the accused, either personally or through the Other Entities identified under (1) above, which was transferred between 1 June 2007 and 15 December 2010 ('Land Transfer Records');
3) the identification and provision of the Income Tax and Value Added Tax ('VAT') returns submitted to the tax authorities by the accused, and any of the Other Entities pursuant to (1) above, between 1 June 2007 and 15 December 2010 ('Tax Records');
4)the identification and provision of records relating to any vehicles registered to, owned or regularly used by the accused, or any of the Other Entities identified pursuant to (1) above, between 1 November 2007 and 1 April 2008 ('Vehicle Records');
5) the identification and provision of statements for any current, savings and/or other accounts, whether at banks or other financial institutions, held by the accused personally, or through any of the Other Entities pursuant to (1) above, between 1 June 2007 and 15 December 2010 ('Bank Records');
6) the identification and provision of all documents relating to transactions by the accused, or any of the Other Entities identified pursuant to (1) above, at foreign exchange institutions between 1 June 2007 and 15 December 2010 ('Foreign Transaction Records');
7) the identification and provision of all telephone numbers ascribed to, used by or associated with the accused between 1 June 2007 and 15 December 2010, and complete call data records and any financial details held by service providers and records of M-PESA transfers ('Telephone Records'); and
8) the identification and provision of copies of any information held by Kenyan security and intelligence services concerning the activities of the accused, and of any of the Other Entities identified pursuant to (1) above, between 1 June 2007 and 15 December 2010 ('Intelligence Records').”
While only the ‘intelligence records’ were executed fully by the Kenyan Government (with a confirmation of the lack of records), four of the other categories (concerning taxes, vehicles, banking and foreign transactions) were partially executed and for the other three remaining records (company, land transfer and telephone), no documentation was provided. The Chamber noticed that the failure to execute the revised request in most of the cases could not simply be attributed to the lack of capacity, practical or administrative barriers or insufficient information provided by the Prosecution, but to the non-cooperative position of the Kenyan Government that cumulatively fell short to the standard of good faith and cooperation required by the Statute.
Despite this, the Chamber rejected the article 87 (7) application on two grounds, firstly, because it was not persuaded that a referral to the ASP would facilitate a fair trial, nor would it advance the interests of justice, and secondly, since it was considered that the Prosecutions actions in following up on the original records request was somewhat complaisant and lacking the investigative and prosecutorial ‘drive’ expected from a Prosecution.
Following this outcome, Fatou Bensouda recognized that the “the evidence has not improved to such an extent that Mr Kenyatta's alleged criminal responsibility can be proven beyond reasonable doubt” Kenyatta’s case might prove the fragility of the cooperation regime of an institution with no real capability to deliver the outcomes it is expected to do.