Judges will reopen a hearing into whether to take action against Kenya over allegations it obstructed investigations into its President Uhuru Kenyatta, after an appeals court ordered them on Wednesday to reconsider their rejection of the case.
Prosecutors at the International Criminal Court (ICC) accused Nairobi last year of failing to send in evidence linked to charges Kenyatta orchestrated a wave of deadly violence after 2007 elections. He denied the charges and the case collapsed.
The prosecution asked judges to refer Kenya to the United Nations, which could impose sanctions, or the court’s overseeing body.
An ICC tribunal initially rejected the prosecutors’ request, but the appeals court said on Wednesday the panel had made mistakes in its ruling and told it to think again.
Any eventual punitive action against Kenya could deepen a divide between the Hague-based court and many African countries who accuse it of bias against the continent.
The international court, set up more than a decade ago to hold the most powerful to account for the most serious crimes, has convicted just two minor African warlords since it started work in 2002.
Reading the appeal court decision, Presiding Judge Silvia Fernandez said the lower court had failed to properly assess the role of prosecutors and that errors prevented it “from making a conclusive determination”.
A failure to cooperate with the court can lead to a reporting of “non-compliance” to the Assembly of States Parties, the ICC’s governing body, or the U.N. Security Council, which has the power to impose sanctions, but has so far not done so.
The ICC has made ten referrals to the Security Council for non-compliance, including Sudan, Chad, Kenya, Djibouti, Malawi and Democratic Republic of Congo, but the 15-member council has not imposed and penalties.
Kenyatta, the son of Kenya’s founding father has said the charges were trumped up and politically motivated, and that prosecution allegations of intimidation or bribery of witnesses were a cover for prosecutors’ incompetence.
There was no immediate comment from the Kenyan government on Wednesday.