Excellencies, distinguished delegates, ladies and gentlemen,

Thank you Chair for this opportunity to address this gathering. I speak on behalf of  Kenyans for Peace with Truth and Justice.

This 13th ASP has been preceded by significant developments. On 5th December, the Prosecutor gave  notice of her intention to withdraw the charges of crimes against humanity against Uhuru Kenyatta,  following the decision by Trial Chamber V (B) denying her request for further adjournment of the case pending full cooperation by the Government of Kenya. The OTP has decried the frustrations that it has faced in the prosecution of the Kenyatta case. These challenges range from witness tampering, disappearance, interference and intimidation to lack of cooperation. These factors have
a critical impact on international criminal justice, and the fight against impunity.

Ladies and gentlemen, this ASP has had discussions on cooperation – with states parties rightly emphasising cooperation as an essential ingredient in the pursuit of justice. The principle of cooperation requires that States do not engage in actions that would undermine the operations of the Court. The statutory obligation of cooperation lies entirely with States: the onus cannot be passed onto an organ of the Court. We urge this ASP to continue to reflect on the lessons learnt from the reliance on states for success of the prosecution of cases and to explore modalities of strengthening the cooperation procedures and mechanisms of the ASP. KPTJ supports the Draft Resolution on Cooperation, and the principle on non-essential contacts contained therein.

Ladies and gentlemen, while noting that the Prosecution has applied for leave to appeal the Decision on the Prosecution’s application for a finding of non-compliance, KPTJ deeply regrets that, although the Trial Chamber found that Kenya’s cooperation was below the standard of good faith required from states parties, it did not refer Kenya to the ASP under Article 87(7) of the Rome Statute. This significantly contributed to the charges being withdrawn. We recall that in addition to the impact of non-cooperation, the withdrawal of charges is a culmination of several other factors which have hindered justice. These have been exacerbated by a high profile campaign of vilification against the Court waged by the Government of Kenya domestically, at the African Union, the UN Security Council, this Assembly of States Parties and other fora. Most recent was the President’s triumphant public declaration “one down, two to go” in relation to the ICC cases and his description at last Friday’s  national  celebrations  of  the  Court  as  a  “threat  to  Kenya’s  reconciliation  and stability” that “offers no clear promise of justice for the victims of post-election violence”. He has also vowed, “not to stop or relent” until all the Kenya cases are ended. This campaign has gone hand in hand with the defamation of civil society, an active campaign of disinformation and a determined onslaught on the democratic gains of our new Constitution.

This campaign has had a direct impact on cooperation. In domestic proceedings in many countries, including Kenya, parties to the case may not comment publicly in a manner that prejudices the proceedings or disparages the courts. There is no equivalent rule under the Rome Statute. The ASP may, unfortunately, have to begin to seriously consider how it will deal with States Parties who are, essentially, in contempt of court and link it with the duty to cooperate.

The overall effect of these developments has been to deny victims their right to justice. This is worsened by the lack of credible and meaningful domestic accountability measures within Kenya.

Prosecutions and reparations largely remain a mirage. The primary responsibility of investigating and prosecuting these crimes has always been that of the government of Kenya and on this score, it has failed dismally. We urge the Government of Kenya to fulfil its duty and revisit investigations and prosecutions of perpetrators, which are long overdue. We stress that Kenya remains responsible for complying with the OTPs outstanding revised records request. We also call on the OTP to continue its investigations into the situation in Kenya.

In closing, victims of post-election violence have long viewed the Court as their only viable
option for justice. The withdrawal of the charges in case two has crushed their hopes. It is
imperative for the Court to communicate these developments to the victims in a manner that would mitigate against a feeling of total disenfranchisement.

Finally, ladies and gentlemen, we note with concern that there is still no tangible effort by the Trust Fund for Victims to commence operations in Kenya. The vast majority of victims continue to be in urgent need of help to rebuild their lives and regain their dignity. We therefore urge the TFV to conduct its long over-due assessment in Kenya and roll out operations in accordance with its assistance mandate.

Ladies and Gentlemen, we thank you.

December 15, 2014
New York

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