A civil society organisation that aggressively challenged Uhuru Kenyatta’s presidential victory at the Supreme Court has started another legal duel with the President at The Hague.
The Africa Centre for Open Governance (Africog) has already been allowed to file observations challenging a decision not to sanction Kenya at the Assembly of States Parties in the now-defunct case against President Kenyatta.
A five-judge Bench of the ICC Appeals Chamber ruled that the NGO should make their submissions as a friend of the court, known in legal parlance as amicus curiae, by Friday this week.
“The Africa Centre for Open Governance may file observations on the topics listed in the above- mentioned request of no more than15 pages,” the Chamber, led by ICC President Silvia Fernández de Gurmendi, said.
ICC Prosecutor Fatou Bensouda has appealed a decision by the Trial Chamber declining to refer Kenya to the ASP over alleged failure to disclose President Kenyatta’s financial and phone records.
A successful appeal could resurrect the crimes against humanity charges against the President as Bensouda is threatening to press for new charges if her evidence improves.
“Mr Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she stated as she withdrew the case last year.
In their ruling, the judges said that Africog can file observations explaining the context in which the alleged non-cooperation occurred.
They will also highlight the relevant statutory provisions under Kenyan law relating to cooperation with the ICC.
Bensouda, Attorney General Githu Muigai, victims’ lawyer Fergal Gaynor and Uhuru’s lead counsel Stephen Kay have up to Friday next week to respond to Africogs’s petition.
Africog has had a series of legal battles with Kenyatta and Deputy President William Ruto that climaxed in 2013 when they put up a spirited fight to have Kenyatta’s presidential victory nullified.
In an eloquent presentation made by lawyer Kethi Kilonzo, Africog teamed up with Cord to try and prove that the presidential vote was openly rigged.
Later that year, Africog thwarted Ruto and journalist Joshua arap Sang’s bid to have their trial moved to Kenya or Tanzania.
In the ongoing appeal, Bensouda argues that the Trial Chamber erred in law by failing to automatically refer Kenya to the court’s 122 signatory states known collectively as the ASP – having initially made the requisite factual finding.
However, Attorney General Githu Muigai dismissed the appeal, terming it an abuse of court process.
The AG has insisted that Bensouda was transferring her investigative responsibility to the Kenyan government and is now pushing for punitive action against the country.