Kenyan Officials May Face ICC Indictment

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By Katherine Iliopoulos

Impunity for the post-election violence in Kenya may soon come to an end with the announcement by the International Criminal Court’s prosecutor Louis Moreno-Ocampo of November 5 that he intends to submit a request to the Pre-Trial Chamber for permission to investigate the bloodshed and ethnic tensions that rocked the East African nation between December 2007 and February 2008.

Senior Kenyan government officials suspected of committing crimes against humanity during last year’s election violence that claimed over 1000 lives could be indicted in The Hague as early as 2010.

The prosecutor was compelled to act as a result of Kenya’s failure to take action against the main perpetrators through its own courts, and mindful of the urgency of bringing them to justice before the next elections in 2012. “The Kenyan government has left the ICC no option but to open an investigation by its failure to do so itself,” said Godfrey Odongo, Amnesty International’s East Africa researcher. “Kenya has failed to define the crimes against humanity committed by members of all parties during the elections last year as crimes under national law. By doing so, it has opened the door to an ICC investigation and prosecution.”

Kenya last year enacted the ICC Act defining crimes against humanity and other crimes under international law as crimes under Kenyan law, but only if committed after January 2009.

The disputed election on December 27, 2007 between intense rivals President Mwai Kibaki, an ethnic Kikuyu, and Kalenjin Prime Minister Raila Odinga was marred by ballot fraud: Kibaki was declared the winner, while Odinga claimed to have had a strong lead. An independent observer mission on behalf of the Commonwealth reported that the election had major flaws that for the most part occurred in the post-poll period. It sparked a wave of widespread killings, displacement, and serious human rights violations, which according to the Prosecutor may constitute crimes against humanity.

In the worst of the violence early last year in the Rift Valley region, Kalenjin militias killed dozens of Kikuyu civilians from Kibaki’s ethnic group. Criminal Kikuyu gangs subsequently attacked civilians deemed to be opposition supporters. It was not until a power-sharing agreement was concluded between the two politicians in 2008 that the violence came to an end.

Unlike Uganda, the Central African Republic and the Democratic Republic of the Congo, Kenya has so far refused to refer its own situation to the ICC under Article 14 of the Rome Statute, leading Ocampo to threaten to invoke his power to initiate investigations himself under Article 15, the first instance of the exercise of this power in the history of the ICC.

A controversial July 3 agreement Ocampo signed with a Kenyan delegation to The Hague promised that the Kenyan Government would refer the situation to the ICC if it failed to persuade Parliament to create a Special Tribunal by September 30, 2009. The Government has since disowned the deal following criticism of the ICC by the African Union and it has failed to garner support in the National Assembly for a Special Tribunal.

The establishment of a Special Tribunal was one of the recommendations of the Waki Report, which was compiled by the Post Election Violence Commission established as part of the power-sharing agreement. It provided that a Special Tribunal for Kenya ought to be set up to prosecute those responsible within 60 days of the report’s submission to the Panel of Eminent African Personalities, failing which the Panel would forward to the ICC Prosecutor “a list containing the names of and relevant information on those suspected of bearing the greatest responsibility.”

With the Kenyan Parliament unable to pass the Special Tribunal bill, the envelope was forwarded to Ocampo in July this year by Former UN Secretary-General Kofi Annan, who had led the successful mediation in 2008. As recently as November 11, Parliament failed in its third attempt to establish the Tribunal, with only 19 present of the minimum of 30 lawmakers required for a vote. Kenyan Foreign Minister Moses Wetangula said last week that Kenya is still insisting on a domestic trial, despite the defeat of the bill. “Our commitment was and remains a local solution… we are still committed to that.”

Apart from the conditions of the power-sharing agreement, under International Law including the Rome Statute of which Kenya is a signatory, Kenya has the primary obligation to try international crimes committed on its territory or by its nationals. According to the Preamble of the Rome Statute, “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” It is only when a national judiciary is unwilling or unable to do so that the ICC may intervene and conduct its own investigations and prosecutions.

A Special Tribunal would have been able to overcome the traditional obstacle to prosecution before ordinary domestic tribunals for top officials. It could also have acted in place of the ICC or in conjunction with it, by prosecuting lower level perpetrators, including for crimes other than those defined in the ICC Statute, whilst the ICC focused those bearing the greatest responsibility for the most serious crimes.

Since Kenya ratified the ICC Statute in March 2005, the ICC has jurisdiction for crimes committed in the country since then, including genocide, crimes against humanity and war crimes. The Waki Report did not engage in a qualification of crimes committed, yet the Kenya National Commission on Human Rights (KNCHR) in its report was unequivocal in stating that “the violence following the 2007 General Election meets the criteria of crimes against humanity under Customary International Law in so far as it involved conduct including the multiple commission of acts of inhumanity against civilian populations, pursuant to or in furtherance of an organisational policy to commit such attacks in the theatres of violence.”

According to the Explanatory Memorandum of the ICC Statute however, crimes against humanity must be “part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.” This means that the State or organization must actively promote or encourage such an attack against a civilian population, although in exceptional cases it may be shown by State or organisational inaction. The KNCHR was unable to make a finding that the relevant acts were committed pursuant to either state or organisational policy as required under article 7(2)(a) of the ICC statute. ICC investigators may therefore pay special attention to gathering evidence proving the existence of a state or organisational policy.

But the Report does allege that Kalenjin and Kikuyu cabinet ministers and MPs incited, organised and funded militia groups which helped to sustain the violence, lending it its widespread and systematic character.

Hate speech featured prominently during the pre and post-election period, with both the Waki and KNHCR reports detailing the dissemination of hate propaganda via text message, leaflets, religious leaders, gospel singers and local language media. Call-in shows on radio stations enabled individuals to make unregulated hateful statements. Inooro FM put on air highly emotional and distraught victims of violence, a factor that tended to whip up the emotions of its audience. Music in the Kikuyu language played on Kameme and Inooro radio stations also engendered or raised ethnic tensions. Communities such as the Kikuyu and Kisii residents in the Rift Valley were referred to by some Kalenjin politicians as “madoadoa” (stains) before and during the post-election violence.

Reminiscent of the type of hate speech and ‘dehumanisation’ that characterised the Rwandan genocide and the so-called ‘bilateral genocide’ of Burundi between 1993 and 1995, it compelled the KNHCR to warn that should this phenomenon continue, alongside the culture of impunity for past acts of violence in 1992, 1997 and 2005, that there is a real possibility of genocide in Kenya in the future.

The KNHCR report found that notwithstanding the fact that acts of genocide occurred – killing and causing serious bodily or mental harm to members of a group – their investigations did not yield sufficient evidence to prove that the physical perpetrators were doing so with the specific intent to destroy, in whole or in part, the relevant groups.

The Prosecutor’s office has been conducting a preliminary investigation into the violence since February 2008. Ocampo said he believed he had “strong” evidence of crimes against humanity, and it would take up to six months to complete the casework if the Pre-Trial Chamber allows his request. The Kenyan Government has agreed to co-operate with his investigations, with Wetangula telling the AFP that they have given him “our firm assurances… that we will discharge our international responsibilities fully within the context of the (Rome) Statute.”

Following the enactment of the Truth Justice and Reconciliation Act, 2008, there is now a Truth, Justice and Reconciliation Commission (TJRC) in place in Kenya which has indicated that it will start hearings by mid-2010.

Despite these assurances, some Kenyans remain unconvinced. Gitobu Imanyara, a human rights activist, lawyer and back bench member of Kenya’s Parliament, who originally introduced the Special Tribunal bill. “When the President and Prime Minister say they will co-operate with the ICC, do not believe it,” he said. “They talk of the truth and justice commission dealing with suspects, but this will not happen.”

According to a report by Voices of Africa, some Kenyans are calling for ICC intervention, others prefer a local court and have criticised the failure to establish a Special Tribunal, and some find that attempting justice in Kenya is futile whilst the masterminds of the violence remain in government.

In an interview with the Christian Science Monitor (CSM) on November 5, Tom Wolf, a Kenyan political analyst and pollster, said that in the rush to prosecute the violence, it is crucial to expose the decades-long pursuit of power by the country’s elite which culminated in the flawed 2007 election. “Kenyans’ profound concern over the mess-up in the electoral process has completely escaped any and all of this judicial activity,” he said. “It’s not just judicial, it’s intensely political.”

Ocampo’s staff expressed to the CSM their confidence that there would still be a referral to the ICC from within the Kenyan government. While it may seem that Ocampo’s latest announcement is an attempt to set a final deadline of next month in the hope of persuading the government to make a referral, according to the CSM, sources close to both Kibaki and Odinga have said that there will be no “referral” from the government.

Despite the larger political and institutional issues that also need to be addressed in Kenya, it seems that for many Kenyans, who have witnessed years of ethnic violence and subsequent impunity, and who implicitly mistrust the police and the judiciary, an ICC trial may prove to be the only form of redress for past wrongs and the only hope for avoiding ethnically-motivated violence in the future.

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.

Related Links:

ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity
Lionel Nichols
EJILTalk!, November 17, 2009

ICC Press Release: Situation in the Republic of Kenya assigned to Pre-Trial Chamber II
Coalition for the International Criminal Court
November 6, 2009

The Waki Report (PDF)
Commission of Inquiry into the Post-Election Violence
October 2008

On the Brink of the Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence (PDF)
Kenya National Commission on Human Rights
August 15, 2008

In Kenya, ICC’s Ocampo Stokes New Look at Election Violence
By Scott Baldauf
Christian Science Monitor
November 5, 2008

ICC or No Justice? Kenyans Still Wonder
Voices of Africa
February 15, 2009

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