12/15/2017
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Spotlight shifts to ICC referral and Somalia border case


Sunday December 3, 2017

President Uhuru Kenyatta at the ICC in The Hague, Netherlands. In September 2016, ICC trial judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson found Kenya to have breached the Rome Statute in the case of President Uhuru Kenyatta by failing to produce information requested by Ms Fatou Bensouda, the prosecutor. FILE PHOTO | NATION MEDIA GROUP
President Uhuru Kenyatta at the ICC in The Hague, Netherlands. In September 2016, ICC trial judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson found Kenya to have breached the Rome Statute in the case of President Uhuru Kenyatta by failing to produce information requested by Ms Fatou Bensouda, the prosecutor. FILE PHOTO | NATION MEDIA GROUP


The spotlight is expected to temporarily swing from politics as the government focuses on two events regarding the International Criminal Court and the country’s maritime border dispute with Somalia at the International Court of Justice.

From Monday, the Assembly of State Parties — the management oversight and legislative agency of the ICC — will be meeting at the UN headquarters in New York for the 16th session, which will end on December 14.

As the session opens, two events will be of focus to Africa and Kenya in particular.

ASSETS

In the provisional work plan of the ASP, cooperation with ICC has been listed as an item for discussion on December 11. It is understood that the referral of Kenya to the ASP by ICC could come up at that point.

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In September 2016, trial judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson found Kenya to have breached the Rome Statute in the case of President Uhuru Kenyatta by failing to produce information requested by Ms Fatou Bensouda, the prosecutor.

Failure to reveal Mr Kenyatta’s bank accounts, assets, ownership of companies and financial transactions in the lead-up to the 2007 elections and early 2008 was cited by Ms Bensouda as one of the reasons the crimes against humanity case flopped.

“Noting that the case against Mr Kenyatta has already been terminated and considering the relevance of the materials sought in the prosecutor’s request to current or future investigations, Trial Chamber V considered a referral to the ASP appropriate for the purpose of fostering cooperation more broadly,” the court said.

The subject of cooperation could also be interesting for other African countries, which have in the past accused ICC of targeting their leaders.

NEW JUDGES

Along with cooperation, the ASP will be electing six new judges to replace among others, Kenya’s Joyce Aluoch and Botswana’s Sanji Mmasenono Monageng.

Both would have served their nine-year non-renewable terms on March 10, 2018. Since the positions are rotational, neither Kenya nor Botswana has candidates.

African countries that have candidates are Benin, Ghana, Uganda and Lesotho.

The election of judges will take place on December 5 and 6 while cooperation will be discussed at the plenary on December 11.

Meanwhile, Kenya also has a date with the UN’s principal judicial organ, the ICJ, in the dispute between Nairobi and Somalia.

After ruling on February 2 that it had jurisdiction to adjudicate the dispute between Somalia and Kenya concerning maritime delimitation in the Indian Ocean and that Somalia’s application was admissible, ICJ fixed December 18 as the time-limit for the filing of the counter-memorial of Kenya in the case.

The counter memorial should have at least three parts namely statement of relevant facts, statement of law and submissions, and will be Kenya’s official response to the maritime dispute case filed by Somalia.

“Kenya’s counter-memorial will be filed on or before December 18,” Attorney-General Githu Muigai told the Sunday Nation, adding that the response would be a “bulky document”.

Somalia’s memorial, which is in four volumes, was filed on July 13, 2015. It sought the maritime boundary redrawn to extend diagonally to the south at Kiunga into the sea, and not eastwards as it is.

“The court is asked to determine, on the basis of international law, the complete course of the boundary dividing the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles. Somalia also requests the court to determine the precise geographical co-ordinates of the single maritime boundary in the ocean,” Somalia said.

If granted, Somalia’s prayers could also affect Kenya’s sea border with Tanzania.


     
 



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