The trial of
Kenya’s deputy president, William Ruto, and his co-defendant, the radio broadcaster Joshua arap Sang, is scheduled to begin at the
International Criminal Court (ICC) on September 10, 2013. A three-judge trial chamber sitting in The Hague will hear the case.
The men face
crimes against humanity charges
for their alleged roles in murders, deportation or forcible transfer of
population, and persecution during Kenya’s 2007-2008 post-election
violence. Ruto, who was a member of parliament at the time, will be the
first senior Kenyan politician to stand trial for crimes committed
during the violence.
“Kenya’s leaders broke their promises to hold national trials, which
obliged the ICC to step in as a court of last resort,” said
Elizabeth Evenson,
senior international justice counsel at Human Rights Watch. “As the
trial begins, we should focus on the crimes committed more than five
years ago and Kenya’s failure to afford justice to the victims who lost
so much.”
The trial of Kenya’s president, Uhuru Kenyatta, in a related but
separate case, is due to start at the ICC in November. Ruto and Kenyatta
were on opposite sides of the political divide in 2007-2008 and are
accused of organizing attacks against one another’s supporters. They
were elected in March 2013 on a joint ticket.
The 2007-2008 violence followed what was widely perceived as a rigged
presidential election. At least 1,100 people were killed and as many as
650,000 people forced from their homes. Thousands were injured. The
scope of sexual violence committed at the time is still not fully known.
The ICC stepped in to investigate in 2010 after Kenya’s then-leaders broke repeated promises to hold those responsible to account in national trials.
Ruto, Kenyatta, and Sang are not subject to arrest warrants, having
cooperated with the court until now, and have pledged to continue
voluntarily appearing before the ICC. The Kenyatta government has
repeatedly tried, since taking office in April, to seek the support of
regional leaders and political bodies – including the United Nations
Security Council and the African Union – to end the ICC’s cases. This
undermines its stated commitment to the court.
For additional information about the Kenya cases, please see "
Kenya: Q&A on Recent Developments on the International Criminal Court" (April 2013), “
Kenya: Q&A on Pre-Trial Hearing in Second ICC Case” (September 2011), “
Kenya: Q&A on Pre-Trial Hearing in First ICC Case” (August 2011), “
ICC: First Appearance of Kenya Suspects” (April 2011), and “
Kenya: Q&A on Kenya and the International Criminal Court” (January 2011).
1.What is the case against Ruto and Sang about? What crimes are they charged with?
2. What is the case against Kenyatta about? What crimes have been charged against him?
3. Why aren’t any of the accused facing arrest warrants?
4. Will Ruto be required to attend the trial in person?
5. What did Human Rights Watch’s research show about the Kenyan post-election violence?
6. Will Kenyan victims be able to participate in the trial?
7. Why did the ICC get involved in Kenya?
8.
Apart from the ICC process, have victims and their families had access
to justice in Kenya for crimes committed during the post-election
violence?
9.
Does the fact that the Kenyan people elected Kenyatta and Ruto as
president and deputy president in March 2013 mean they don’t support the
ICC process and it should end?
10.
The 2013 elections in Kenya were held without violence, even though
trials had yet to take place. Doesn’t this show that Kenyans have moved
on?
11.
At its May 2013 summit, the African Union called for the ICC’s cases to
be handled by a “national mechanism” in Kenya. What impact does this
have?
12. Some African heads of state charge the ICC with targeting African leaders for prosecution. Is this true?
13.
The ICC prosecutor has alleged “unprecedented” levels of witness
interference in the ICC’s cases. What can be done to ensure that
witnesses are protected from interference or intimidation?
14. Has the ICC prosecutor effectively investigated the case against Ruto and Sang?
15. Are the ICC cases alone enough to bring accountability for the post-election violence?
1.What is the case against Ruto and Sang about? What crimes are they charged with?
William Ruto and Joshua arap Sang are
charged
with the crimes against humanity of murder, forcible transfer of
population or deportation, and persecution, stemming from their alleged
involvement in an attack on perceived supporters of former President
Mwai Kibaki’s Party of National Unity (PNU).
According to the
International Criminal Court
(ICC) prosecution, perpetrators destroyed houses and businesses
identified as belonging to members of Kikuyu, Kamba, and Kisii ethnic
groups thought to be PNU supporters, killing over two hundred people and
injuring over a thousand more and forcing hundreds of thousands to
flee. Five specific incidents occurring between late December 2007 and
mid-January 2008 in
Kenya’s Rift Valley form the basis for the charges.
The prosecutor contends that Ruto along with others, and supported by
Sang, worked for up to a year before the election to create a network
to carry out the plan, and that this network was activated when the
election results in favor of Kibaki were announced. The goals of the
plan, the prosecutor alleges, were to punish and expel from the Rift
Valley people perceived to support the PNU, and to gain power in the
province.
Ruto at the time was a member of parliament and a senior member of
the Orange Democratic Movement (ODM), the party of Kibaki’s principal
challenger, Raila Odinga. Sang was a radio host on the Eldoret-based
Kass FM. The prosecutor will seek to prove at trial that Ruto created
and supervised the network’s implementation of attacks, while Sang
incited and then helped coordinate attacks by disseminating coded
messages through his broadcasts.
The defendants are not required to set out their case in advance of
trial. The Ruto defense has indicated that it intends to prove that
prosecution witnesses colluded with one another and with the support of
“international and domestic Kenyan organizations” to fabricate evidence.
The ICC prosecutor had initially sought charges against a third
suspect in this case – Henry Kiprono Kosgey, then also a senior ODM
member of parliament – but a
pre-trial chamber found insufficient evidence to send the case against him to trial.
2. What is the case against Kenyatta about? What crimes have been charged against him?
Uhuru Kenyatta is
charged
with committing the crimes against humanity of murder, forcible
transfer of population or deportation, rape, other inhumane acts, and
persecution. The prosecutor will seek to show that Kenyatta enlisted the
Mungiki, a criminal gang, to carry out attacks on perceived ODM
supporters in and around Nakuru and Naivasha towns during the last week
of January 2008. During these attacks, allegedly organized in response
to attacks on PNU supporters in other areas of the Rift Valley, the
prosecutor alleges that Mungiki and other pro-PNU youth – some
transported to the Rift Valley from other parts of Kenya – killed,
raped, and injured (including through forced circumcision and penile
amputation). They also allegedly looted and destroyed properties and
displaced thousands of people.
3. Why aren’t any of the accused facing arrest warrants?
All three defendants in the ICC’s Kenya cases are subject to voluntary summonses to appear.
These may be issued at the ICC in the place of arrest warrants, where
the judges consider that a warrant is not necessary to ensure the
person’s appearance before the court.
Like an arrest warrant, an ICC summons to appear contains the crimes
an individual is alleged to have committed and triggers proceedings that
may bring a case to trial. But unlike an arrest warrant, the summons
imposes only an obligation on the individual to appear before the court
in The Hague; a summons does not impose any obligation on the
authorities in Kenya or any other ICC state party to arrest the person.
If the accused fails to appear or does not comply with any conditions
listed in a summons, the pre-trial chamber may decide to issue an arrest
warrant. All the accused have complied with their summons to date.
4. Will Ruto be required to attend the trial in person?
Yes, for the time being. In June 2013,
the trial chamber
excused Ruto from personally appearing before the court for
considerable potions of the trial. The trial chamber by a 2-1 majority
found that although ICC defendants have a duty to appear in person, the
need to accommodate Ruto’s responsibilities as deputy Kenyan president
justified an exception to this rule. The chamber required Ruto to attend
certain hearings including the trial’s opening, closing, if victims
present their views in person, and the delivery of the judgment.
The decision is not final, however. The trial chamber, by a different majority,
granted the prosecution leave to appeal and a decision is still pending from the ICC’s appeals chamber. The appeals chamber
decided in August 2013 that Ruto will be required to attend all sessions of the trial until it renders a final decision on the appeal.
5. What did Human Rights Watch’s research show about the Kenyan post-election violence?
In January and February 2008, Human Rights Watch researchers were on
the ground documenting the post-election violence as it unfolded. Human
Rights Watch conducted more than 200 interviews with victims, witnesses,
perpetrators, police, magistrates, diplomats, Kenyan and international
nongovernmental organization staff, journalists, lawyers,
businesspeople, local government officials, and members of parliament
across the country, from all major ethnic groups.
Human Rights Watch
documented
essentially three patterns of violence. First, members of the Kenyan
police forces responded to demonstrations and riots with excessive force
in some areas. They fired on unarmed demonstrators and bystanders to
break up riots, and to keep people away from demonstrations. In other
areas, the police did nothing as mobs committed acts of brutality. The
Commission of Inquiry into Post-Election Violence (CIPEV), also known as
the Waki Commission,
found
that of the more than 1,100 people killed during the violence, 405 were
shot fatally by police. An additional 557 individuals were injured by
police gunfire.
Second, mobilized opposition supporters – especially in the Rift
Valley and the informal settlements of Nairobi – attacked those they
assumed had voted for Kibaki and his PNU. The victims were predominantly
Kikuyu, Kenya’s largest ethnic group, reflecting an ethnic dimension to
the violence. Around Eldoret, local ODM mobilizers and other prominent
individuals called meetings during the election campaign to urge
violence in the event of a Kibaki victory. In the days that followed,
attacks were often meticulously organized by local leaders.
Third, Kikuyu militia carried out reprisal attacks on members of
ethnic groups seen to be associated with the ODM. In Naivasha and Nakuru
in the southern Rift Valley, PNU mobilizers and local businesspeople
called meetings, raised funds, and directed youth in their attacks on
non-Kikuyus and their homes.
Human Rights Watch has consistently called for those behind the
attacks to be held to account, and for investigations to determine the
extent of links between the attackers and the national leaderships of
the opposition and ruling parties. Human Rights Watch’s research
suggested some leaders may have been at least aware of what was
happening and done little to stop it. Some may have been more directly
involved.
6. Will Kenyan victims be able to participate in the trial?
Yes, although few, if any, will appear in person before the ICC.
Under an innovative system at the ICC, some victims may participate
in the case against Ruto and Sang. These are individuals who suffered
harm in the specific incidents underlying the charges in the case and
they are participating in their own right, rather than exclusively as
witnesses called by the prosecution or defense. The victims in the case
have a court-appointed lawyer, Wilfred Nderitu, a member of the Kenyan
bar, serving as their common legal representative and supported by staff
of the ICC’s Office of Public Counsel for Victims.
According to a decision of the trial chamber, apart from key moments
in the trial like the opening statements, staff of the Office of Public
Counsel for Victims will appear in court on behalf of Nderitu. On behalf
of his clients, he may seek permission to question witnesses and
introduce evidence. At the request of a victim, via the common legal
representative, the judges may also give a victim permission to present
his or her views directly to the court, either in person or via
video-link.
The court said 327 victims participated in proceedings before the
pre-trial chamber. The trial chamber ordered a new system to register
victims so they are not required to submit individual applications, as
has been the practice of other trial chambers. It is uncertain how many
victims will participate in the trial. In June 2013, a letter was sent
to the court, purportedly on behalf of 93 victims, seeking to withdraw
their participation in light of a loss of confidence in the process. The
circumstances under which the letter was sent have not been publicly
verified.
7. Why did the ICC get involved in Kenya?
Kenya joined the ICC in 2005. The ICC is a court of last resort,
stepping in only where national authorities are unable or unwilling to
genuinely prosecute crimes within the court’s jurisdiction. It was on
the basis of inaction by the Kenyan authorities to hold those
responsible that the ICC opened cases in Kenya.
In 2008, mediators appointed by the African Union, called the Panel
of Eminent African Personalities and led by former UN Secretary-General
Kofi Annan, helped negotiate an end to the violence. An agreement by the
parties put in place the Commission of Inquiry into Post-Election
Violence or Waki Commission. The commission found that serious crimes
had taken place and recommended establishment of a special tribunal in
Kenya to hold those most responsible to account in national trials. Its
report
contained a strict timeline for setting up the tribunal and putting it
to work, which, if breached, would require the mediator – Kofi Annan –
to pass a sealed envelope with the names of chief suspects to the
International Criminal Court.
In December 2008, Kibaki and Odinga, who became prime minister in the
coalition government, agreed to establish a special tribunal to
prosecute perpetrators of the post-election violence. Kibaki and Odinga,
however, failed to follow through, and did not marshal necessary
support in parliament for the tribunal. In what now seems a clear
attempt to stall domestic justice efforts, Ruto, among other members of
parliament, purported to support the ICC under the rallying cry “Don’t
be vague! Let’s go to The Hague!” Legislative efforts to establish the
tribunal went nowhere over the course of 2009.
In the absence of national steps toward accountability, and after
Annan had handed over the envelope from the Waki Commission in July
2009, the ICC prosecutor announced in November 2009 that he would seek
authorization from the pre-trial chamber to open an investigation. In
authorizing the prosecutor’s investigation in March 2010, the pre-trial
chamber
found
that there were no relevant national proceedings regarding the types of
offenses and high-level individuals likely to be targeted in the ICC
investigation.
8. Apart from the ICC process, have victims and their
families had access to justice in Kenya for crimes committed during the
post-election violence?
No. According to Human Rights Watch’s
research,
although tremendous pressure from the Kenyan population stirred initial
efforts in the aftermath of the violence to bring accountability,
slapdash investigations and prosecutions were so hurried that they
resulted in acquittals.
Following initial failures, the criminal justice apparatus appeared
to lose momentum. Out of thousands of potential cases, Human Rights
Watch has confirmed only a handful of convictions for serious crimes
related to the 2007-2008 post-election violence, and convictions in only
three murder cases. This is in spite of the adoption of a new
constitution in 2010 and reforms to the judiciary. The previous
government did not show a serious commitment to ensuring fair,
transparent and effective investigations of those who organized and
financed the violence.
In 2012, the Kenyan Director of Public Prosecutions (DPP) announced
that his office would review at least 5,000 cases with a view to
prosecuting them ahead of the 2013 elections, but a committee appointed
to review the cases said in August 2012 that it was finding it difficult
to obtain evidence in most cases. The DPP recently indicated that his
office obtained an additional 54 convictions for crimes of sexual
violence committed during the post-election violence.
Police officials implicated in crimes have enjoyed impunity, with an
acquittal in one case of murder brought against a police officer. This
was in spite of the fact that the police officer was caught in footage
broadcast on national television shooting two protesters who appeared to
be unarmed. Both protesters died.
In many police shooting cases, surviving victims or family members
sought to file criminal complaints, but were turned away. The father of
two children shot by police, one an 11-year-old girl,
told Human Rights Watch:
I went to the police and said “The police
killed my child.” They said, “The police don’t kill people.” They
refused to write a statement. When I insisted, they said, “If you
continue to play around, you could be shot, too.”
The government has refused to pay compensation in successful civil
suits brought by victims of police shootings. Victims of police
shootings and of sexual violence committed during the post-election
violence have filed two constitutional cases in the Kenyan high court
seeking to compel the government to address these crimes.
The failure to hold to account those responsible for the 2007-2008
election violence continues a cycle of impunity in Kenya. Perpetrators
of political violence in 1992 and 1997 also escaped justice. As a
Kalenjin elder
told a Human Rights Watch researcher:
We are very good at saying we don’t leave a
single stone unturned, but we don’t turn a single stone. Maybe we turn
pebbles….Small stones are turned. The big ones, no one dares.
9. Does the fact that the Kenyan people elected
Kenyatta and Ruto as president and deputy president in March 2013 mean
they don’t support the ICC process and it should end?
The ICC treaty does not recognize immunity from prosecution for
officials, and Kenya’s constitution expressly provides that the
president is not immune from prosecution for crimes under a treaty to
which the country is a party, and which, like the Rome Statute,
prohibits such immunity. Cases have been brought in international
tribunals against sitting heads of state, including Omar al-Bashir of
Sudan, Charles Taylor of Liberia, and Slobodan Milosevic of the former
Yugoslavia.
Kenyatta and Ruto campaigned on pledges to continue their cooperation
with the ICC, and both restated this pledge following their election.
At the same time, however, their campaign rhetoric sought to paint the
ICC as a tool of Western imperialism. Since taking office the Kenyatta
government has actively courted the support of other African leaders to
undermine the ICC (see below). It has also ignored threats against human
rights defenders and journalists that seem linked to their perceived
association with the ICC
In this context it is unsurprising that views about the ICC process
have become increasingly polarized among Kenyans. According to a media
report, an unpublished June 2013 poll by South Consulting showed
significant continued support for the ICC process – 50 percent of
respondents – but this marks a drop from the highest reported level of
support in the same poll of 89 percent in June 2011. Another June 2013
survey shows that support for the ICC has dropped even further in Kenya
to 39 percent, the first time that this poll, conducted regularly by
Ipsos Synovate since October 2010, has recorded support below 50
percent. The ICC process itself has suffered setbacks like the
withdrawal of the willingness of some witnesses to testify, including
those who have cited security concerns (see below), which may have
undermined confidence.
Serious crimes were committed in 2007-2008 and, in the vast majority
of cases, those responsible have yet to be held to account. The ICC,
while imperfect, is providing a measure of access to justice denied in
Kenya.
10. The 2013 elections in Kenya were held without
violence, even though trials had yet to take place. Doesn’t this show
that Kenyans have moved on?
While the 2013 elections were not marked by the scale of violence
witnessed in 2007-2008, they were preceded by inter-communal clashes in
parts of Kenya which claimed more than 477 lives and displaced another
118,000 people before the vote. Human Rights Watch research
demonstrates
that the underlying causes of the 2007-2008 post-election violence in
the Rift Valley largely remain unaddressed, in spite of pressure from
authorities in some areas to “move on”.
Victims of the 2007-2008 violence told Human Rights Watch that an
absence of justice had contributed to tensions before the 2013
elections. One Kikuyu elder
said:
I see people who killed my relatives, raped my
cousin, destroyed my property. They have not been arrested and tried.
They have not apologized for what they did. How do you expect me to just
accept that and move on?
Kenya’s impunity crisis is profound. Those responsible for political
assassinations under President Jomo Kenyatta’s post-independence regime,
and for the use of torture against political opponents and excessive
use of force by the security services under President Daniel arap Moi,
were not prosecuted. The 2007-2008 election violence was preceded by
similar episodes around the 1992 and 1997 elections. Government
commissions named names, including prominent politicians, but no one was
prosecuted. This entrenched impunity likely encouraged politicians to
believe in 2007 that they could get away with virtually anything to
achieve their political ends.
Civil society activists interviewed by Human Rights Watch in 2011
could not recall a single case in which a senior politician had been
convicted of a serious crime in Kenya, despite an endless stream of
allegations of criminal behavior.
Justice is an important right and end in and of itself, but Kenya’s
history suggests that the failure to deal head-on with past crimes may
only encourage future violence.
11. At its May 2013 summit, the African Union called
for the ICC’s cases to be handled by a “national mechanism” in Kenya.
What impact does this have?
No legal impact. The African Union (AU), a regional body, does not
have standing to challenge the ICC’s jurisdiction in favor of domestic
proceedings once an ICC investigation is open. Under Article 19 of the
Rome Statute, only the accused, a state that has jurisdiction over the
case, or a state that must consent to the court’s jurisdiction, may
submit such an “admissibility challenge”. In light of Kenya’s track
record on accountability, the AU’s call lacks credibility. Kenya lost an
admissibility challenge before the ICC in 2011, when judges could find
no evidence that Kenyan authorities were actually investigating any of
the six individuals then named in the ICC’s cases.
The Kenyan government has sought to
keep up the appearance of cooperation
with the ICC despite the prosecutor’s allegations that cooperation has
been slow or lacking. But the AU’s call resulted in part from concerted
advocacy on the part of Kenyatta’s government to use political bodies to
undermine the ICC’s cases. In the run-up to the AU summit, the Kenyan
government had also called on the United Nations (UN) Security Council
to “terminate” the ICC cases, a power the ICC treaty does not give to
the council. Since the summit, the Kenyan government has asked ICC
member countries, which meet annually, to convene a special session to
consider the AU’s call. This request has been turned down.
The ICC depends on the public support of its member countries and
other interested parties to create a climate conducive to its work.
These initiatives by Kenyan government officials appear to be designed
to have the opposite effect. Other ICC member countries should step up
their efforts to insist on Kenya’s full cooperation – in spirit and in
letter – with the court.
12. Some African heads of state charge the ICC with targeting African leaders for prosecution. Is this true?
In the context of the May 2013 African Union summit, several African
leaders made public criticisms of the ICC for targeting Africans. Some
African leaders have previously made the claim that the ICC is targeting
Africa, but the extent of comments around this summit reflects a
qualitative increase, especially among leaders of ICC states parties.
This is likely at least partly attributable to Kenya’s significance in
Africa and to “shuttle diplomacy” by Kenyan leaders to secure support at
the summit.
While claims that the ICC is targeting African leaders have found
traction, they are not factual. The ICC’s cases are all from Africa, but
the majority came before the ICC as a result of requests by the African
governments of countries where the crimes were committed (Uganda,
Democratic Republic of Congo, Central African Republic, Cote d’Ivoire,
and Mali). Two other situations – Libya and Darfur, Sudan – were
referred by the UN Security Council to the ICC, consistent with the
council’s authority to make referrals under article 13 of the Rome
Statute. Only with regard to Kenya did the ICC prosecution act entirely
on its own initiative, and, as discussed above, only after Kenya failed
to take action on justice at home and Annan had handed over the sealed
envelope from the Waki Commission.
Although claims that the ICC is targeting Africa are inaccurate,
double standards are certainly at work in the operation of international
justice. Governments are able to shield their citizens and the citizens
of their allies from the ICC’s authority by not joining the ICC or by
using their veto power at the UN Security Council to block referrals of
situations to the ICC. It is essential that those supportive of justice
for serious crimes, including ICC member countries, work to press for
accountability regardless of where crimes are committed and call out
double standards when states seek to block access to justice.
13. The ICC prosecutor has alleged “unprecedented”
levels of witness interference in the ICC’s cases. What can be done to
ensure that witnesses are protected from interference or intimidation?
The ICC prosecutor has characterized the scale of interference with
witnesses in the Kenya cases as “unprecedented,” referring to pressure
on witnesses and their families. Victims participating in the ICC cases
in Kenya have consistently highlighted their safety concerns in court
through their legal representatives. In the two Kenya cases, publicly
available court records suggest that some potential prosecution
witnesses have either not confirmed their willingness to testify or have
withdrawn their testimony citing security concerns.
The ability of all witnesses – whether for the prosecution or the
defense – to appear before the court securely and without fear of
reprisal is essential to fair and credible trials. The same is true with
regard to the effective exercise of the rights of victims to
participate in ICC proceedings. Interfering with witnesses can amount to
a crime leading to prosecution under both the ICC treaty and Kenyan
law.
The ICC has an obligation to take appropriate measures to protect the
well-being and safety of witnesses, victims participating in the
proceedings, and others at risk on account of testimony given by
witnesses, including, for example, so-called intermediaries assisting
the work of the court. Protective measures may range from steps like
permitting witnesses to testify in a closed session to keep their
identities hidden from the public to relocating witnesses away from
security threats. Protective measures can be taken for both prosecution
and defense witnesses.
Long delays in relocating ICC witnesses can expose them to risk and
delay proceedings, given the need to ensure that protective measures are
in place before witness identities are disclosed to other parties. ICC
officials have repeatedly stressed the urgent need for additional
countries to sign witness relocation agreements with the court. It is
also critical that states respond positively to requests for assistance
in relocation in order to meet protection needs. The ICC’s new
registrar, elected in March, has indicated that the protection, support,
and relocation of witnesses will be among his first priorities.
While the ICC has specific obligations for its witnesses, victims,
and intermediaries, the Kenyan government has the primary responsibility
to protect the safety of all those within its borders. This includes
investigating harassment or threats amounting to violations of national
law. Kenya’s government should make a public commitment to take steps to
help ensure the security of those assisting justice processes and to
continue strengthening its national Witness Protection Agency.
14. Has the ICC prosecutor effectively investigated the case against Ruto and Sang?
It will be up to the judges to determine on the basis of the full
record before them whether the prosecutor brings forward sufficient
evidence to prove Ruto and Sang each guilty beyond a reasonable doubt.
The defendants are entitled to the presumption of innocence and full
protection of their fair trial rights. The Ruto defense has indicated
that it intends to prove that prosecution witnesses colluded with one
another and with the support of “international and domestic Kenyan
organizations” to fabricate evidence. Again, it will be up to the judges
to weigh these claims.
More generally, investigations at the ICC face a number of
challenges, including securing state cooperation, providing adequate
protection to encourage witnesses to come forward, and collecting
evidence linking the actions of high-level accused to crimes carried out
by other people. Securing state cooperation and witness protection have
been two acute challenges in the Kenyan cases.
Human Rights Watch has been concerned that the Office of the
Prosecutor’s investigative methodologies may need strengthening to meet
these challenges. There are clear signs that the prosecution is taking
steps toward this end, including requesting additional resources from
ICC states parties for investigations. Adapting the office’s
investigative practices to the court’s operational challenges is no easy
task, but it is essential to ensuring that the ICC can deliver
effective and meaningful justice. Human Rights Watch continues to urge
the prosecutor to identify any needed reforms and calls on states
parties and other international partners to support the additional
resources and cooperation – including in witness protection – which may
be needed to improve the efficacy of the office’s investigations.
15. Are the ICC cases alone enough to bring accountability for the post-election violence?
The ICC cases could make a key contribution to break Kenya’s cycle of
impunity for political violence and to afford access to justice for
some victims of the 2007-2008 violence. But given the limited number of
cases the ICC prosecutor has brought in the Kenya situation, and that
those cases relate to specific incidents, in specific locations, and on
specific dates, there is a clear need to establish special judicial
mechanisms in Kenya to investigate and prosecute additional cases in
order to bring full accountability.
There is a pressing need, in particular, to address the role police
may have played in the post-election violence. Although the ICC
prosecutor had alleged that Kenyatta’s then co-defendants, the former
head of public service Francis Muthaura and the former Kenyan police
commissioner Mohammed Hussein Ali, had worked together to ensure that
the Kenya police did not intervene to stop the attacks in Nakuru and
Naivashatowns or to punish those who carried them out, an ICC pre-trial
chamber did not find sufficient evidence that the police had
participated in the attack. The case against Ali was dropped, and a year
later, the ICC prosecutor
dropped all charges against Muthaura.
The prosecutor continues to allege in the Kenyatta case that police
uniforms were distributed to the Mungiki; that the police were
instructed not to interfere with the transportation of youth into the
Rift Valley to carry out attacks; that the police at times refused to
intervene or were slow to respond; and that the police later targeted
and killed several Mungiki leaders who had knowledge of the involvement
of Kenyatta or other politicians in the planning of the violence.
The ICC prosecutor also initially sought to include in the case
against Kenyatta, Ali, and Muthaura charges related to police use of
excessive force in Kisumu, a city in the former Nyanza province, and
Kibera, an informal settlement in Nairobi. But an ICC pre-trial chamber
found that the prosecutor had not brought forward sufficient evidence of
a link between the three defendants and police actions. Human Rights
Watch
had urged
the Office of the Prosecutor to continue its investigations of police
violence, and, evidence permitting, to reintroduce relevant charges.
Kenya’s judicial system faces a number of challenges in taking up
additional cases related to the post-election violence. In November 2012
the Kenyan chief justice announced plans to establish an International
Crimes Division in the Kenyan high court. The Kenyan government should
ensure broad public consultation on the establishment of the
International Crimes Division and on other measures that will be
necessary to overcome the systematic weaknesses and blockages that have
prevented effective prosecution of the post-election violence. In
addition to judges with specialized expertise, this includes prosecutors
and investigators properly trained and insulated from political
interference and the strengthening of Kenya’s witness protection system.
Kenya Q&A on the ICC trial of Kenya's Deputy President