The epitome of these efforts was the government’s refusal to freeze any of President Uhuru Kenyatta’s assets in clear violation of Part 9 of the Rome Statute.
“Taken together, these actions by the Kenyan government appear to illustrate a general policy of unwillingness to co-operate with the ICC. The fervent efforts that the government of Kenya has undertaken to shield Mr Kenyatta from attending trial are difficult to reconcile with the Attorney General’s (Prof Githu Muigai) statements relating to co-operation,” Ms Otieno said in her submissions of May 8 after the ICC allowed Africog to make amicus curiae (friend of the court) filing in the appeal case by ICC Prosecutor Fatou Bensouda.
Ms Bensouda wants the ICC Appeals Chamber judges to declare Kenya non-compliant; a situation she claims led to the termination of President Kenyatta’s case.
According to Ms Otieno, Kenya’s reluctance to fully co-operate with the ICC started as early as 2011 soon after the summonses were issued against six individuals — Mr Kenyatta, Mr Ruto, former minister Henry Kosgey, former head of public service Francis Muthaura, former Commissioner of Police Hussein Ali and journalist Joshua Sang.
“One year after the issuance of summonses, the Kenya government challenged the ICC’s jurisdiction,” Ms Otieno stated.
In its submissions, she said, the government of Kenya had argued that “…with its house being put in order, Kenya is not allowed to finish the task and to investigate and try those at all levels, particularly those at the top of political, military and administrative hierarchies who merit being tried.”
“Four years later, it appears that the government’s ‘house is still not yet in order’ given that there has been no prosecution of high-to-mid level perpetrators of violence during the post-election violence,” said Africog.
Meanwhile, said Ms Otieno, in the 2013 General Election, then Deputy Prime Minister Kenyatta and Mr Ruto formed a coalition whose central campaign issue was the divisive ICC investigations.
“Although the alliance between Mr Kenyatta and Mr Ruto is portrayed as an example of inter-tribal reconciliation, the reality is quite different. Rather than a thoroughgoing, inclusive process of reconciliation, this seemed to represent an elite pact between individuals who faced the same predicament,” she said.
“…Mr Kenyatta also managed to inflame his supporters’ enmity to the ICC and to transform the election into a referendum on the ICC,” she added.