On Wednesday an Appeals Court of the International Criminal Court (ICC) ordered that trial judges re-visit allegations that Kenya obstructed investigations into President Uhuru Kenyatta. Mr. Kenyatta was charged in January 2012 by the ICC Prosecutor with five counts of crimes against humanity for his alleged involvement in ethnic clashes during the 2007-2008 Kenya elections.
 
In November 2013, the ICC Prosecutor filed an application with the court to seek an order finding that Kenya was not cooperating with the investigation by failing to produce records regarding Kenyatta. In December 2014, a Chambers judge dismissed that application. Proceedings against Kenyatta were then terminated in March 2014, in part due to insufficient evidence.
 
The Appeals Court’s decision today reversed the December 2014 Chamber judge decision finding that the Chamber judge had failed to properly assess the Prosecutor’s conduct, the sufficiency of evidence and the measures taken by Kenya or lack thereof to cooperate. This issue will now be remitted to a trial judge to decide appropriately.
 
A finding of ‘non-compliance’ against a state can lead to referral to the Assembly of Parties, the ICC’s governing body, or even the UN Security Council who has the power to impose sanctions. Thus far the ICC has made 10 referrals of non-compliance to the Security Council but sanctions have not been imposed.
 
Fergal Gaynor, the lawyer representing the victims from the 2007-2008 ethnic clashes said to reporters, ““The country has a long history of impunity for those in power. The last thing the victims wanted was for the prosecutor to give up in the face of adversity.”