STATEMENT BY THE KENYANS FOR PEACE WITH TRUTH AND JUSTICE (KPTJ) MADE AT THE

13TH SESSION OF THE ASSEMBLY OF STATE PARTIES TO THE ROME STATUTE DURING THE
COOPERATION SESSION.
Excellencies, distinguished delegates, ladies and gentlemen,
Thank you, madam facilitator, for this opportunity to address the 13th Assembly of State Parties,
during this important session on cooperation an issue that is at the heart of the effective
operations of the ICC. I speak on behalf of Kenyans for Peace with Truth and Justice, a coalition
of Kenyan citizens and over 30 organisations working in the human rights, governance and legal
fields that came together during the crisis over the disputed results of the 2007 presidential
election, to seek truth and accountability over the disputed elections and the widespread
violence that followed and who continue to work very closely with the victims of that dark
period of our countrys history.
As a coalition we address this 13th Assembly at a time when the concept of full and meaningful
cooperation with the ICC is deeply at question. I am certain most of you convened here have
closely followed the developments in the Kenya situation, which has been before the court for
the past four years and certainly are updated on the recent withdrawal of Case 2.
Distinguished delegates, what is of interest to us is not the withdrawal, but the state of
cooperation that prevailed in the case, particularly in the last two years leading to the
withdrawal last week.
It is unfortunate, that the prosecutor was forced to withdraw the charges against the accused,
because of continued frustration in obtaining the relevant evidence to meet the sufficiency
threshold required before commencing trial. While often we will hear this is the prosecutors
failing to have pursued a case without evidence. It should not be lost to us that the prosecutor
has publicly declared, that a lot of the evidence she had secured by the time the charges against
the accused persons were confirmed, was later compromised and eventually lost. It is public
information that many of the witnesses died in very unclear circumstances, others disappeared
and cannot be traced, while others were bribed, threatened and intimidated to cease
cooperating with the office of the prosecutor. The prosecutors efforts to collect additional
evidence made through requests to the government for records held by the government were
only partly complied with, making it impossible to build a case with partial information.
While it is easy to shift blame to the office of the prosecutor, but it should not be lost to us, that
for the last two years the environment which the continued investigations were taking place
was hostile. We have seen extensive efforts to discredit the work of the court, a campaign run

by both government officials as well as individuals employed specifically to execute this

mandate.
It is not enough to say or state, that one is fulfilling their obligation to cooperate. Words must
be seen to match with actions! The question of whether Kenya has made a good faith effort to
cooperate with the Court should be considered in light of the failure by Kenya to fulfil its
obligations under the Statute, including any obstruction of access to relevant witnesses and
documentary evidence and must be seen in the context of the efforts by the leadership of the
country to support the court. If the court and State Parties can come under such pressure as we
have seen in the last two years, you can imagine what pressure victims, witnesses and
organisations working on promoting accountability experience on a daily basis.
Distinguished delegates, the government of Kenya, has shown dismal effort in holding
accountable those responsible for crimes committed during the post-election violence, whether
in Kenyan courts or at the ICC. Instead, the government seems to have adopted a policy of nonprosecution within Kenya, and withholding from the Court important categories of evidence
which would almost certainly reveal much truth about the crimes committed during the postelection violence, and those ultimately responsible for them.
There are lessons to be learnt from the Kenyan cases, particularly the effect of noncooperation in the delivery of justice. Ultimately it is the responsibility of the parties who
voluntarily sign and ratify the Rome Statute to cooperate with the court and ensure it can
investigate and prosecute the most serious crimes.
As State Parties to the Rome Statute, we urge you to ensure that the situation witnessed in the
Kenya cases and particularly in Case 2 does not encourage the disregard of State responsibility
to cooperate once the country has come under the jurisdiction of the ICC. We therefore hope
the cooperation discussion at this assembly and thereafter, will focus on how the existing noncooperation procedures can be strengthened and enforced.
Finally, we want to urge this assembly to remember that the mandate of determining
whether a party has fully cooperated with the court remains the sole mandate of the judges
of the court based on their assessment of submissions before the court. The independence of
the court in this regard must be observed and upheld.
I thank you, for the opportunity to address you.
December 11, 2014
New York,