The International Criminal Court (ICC) has referred the Kenya government to Assembly of States Parties to Rome Statute for non-cooperation.

In a statement, the court ruled that Kenya has failed to comply with its obligations to cooperate with the Hague based court in the case against President Uhuru Kenyatta.

The Trial Chamber said the ASP “would be best placed to address the lack of cooperation, in order to provide an incentive for the Kenyan Government to cooperate with the Court”.

“Noting that the case against Mr Kenyatta has been already terminated and considering the relevance of the materials sought in the Prosecutor’s request to current or future investigations, Trial Chamber V(B) considered a referral to the ASP appropriate for the purpose of fostering cooperation more broadly for the sake of any ongoing and/or future investigations and proceedings in the Kenyan situation” said the court.

Kenya is accused of failing to comply with its statutory obligations to consult with the Court and to take all reasonable steps to execute a request for cooperation from the Court, including by not providing clear, relevant and timely responses or taking any meaningful steps to compel production of requested information.

According to the Chamber, the non-cooperation has prevented the Court from exercising its functions and powers under the Statute.

The Chamber added that, in general, the lack of bona fide cooperation by the Government of a situation country, as shown by the Kenyan Government in this instance, may have a serious impact on the functioning of the Court in future proceedings.

On Nov 29, 2013, the Prosecution had filed an application for a finding of non-cooperation against the Kenyan Government, alleging that the Government had failed to comply with a request to produce records relating to Uhuru Kenyatta.

On Dec 3, 2014, Trial Chamber V(B) rejected the application for referral of the matter to the ASP. The Prosecutor appealed this decision on March 20, 2015.

On Aug 19, 2015, the ICC Appeals Chamber reversed this first decision and remanded it to the Trial Chamber.

The court further observed that the approach of the Kenyan Government fell short of the standard of good faith cooperation required under the Rome Statute.

The judges said the situation had persisted even following a period of active judicial supervision and that the cooperation proceedings had reached a deadlock.

The Trial Chamber observed that no further progress has been made in implementing the Prosecutor’s request despite the passage of a further 18 months and notwithstanding the Kenyan Government’s continuing statutory obligation to comply with any cooperation request from the Court.