The Kenyan Four

Decision to prosecute Kenyan four over post-election violence a lesson for all

ALLAN NGARI

In January 2012, the ICC’s Pre-Trial Chamber II confirmed criminal charges against four Kenyans for bearing the greatest responsibility for the death of 1,100 civilians and the displacement of approximately 600,000 in the violence immediately following the disputed election results in December 2007.

Summaries of the long-awaited decisions were concurrently read out on 23 January 2012 by the presiding judge Ekaterina Trendafilova. She confirmed charges against Uhuru Kenyatta (Deputy Prime Minister, Minister for Finance, son of the Kenya’s first President and currently a presidential aspirant), Francis Muthaura (Head of Kenya’s Civil Service and Secretary to the Cabinet), William Ruto (suspended Minister for Agriculture and currently a presidential aspirant) and Joshua Sang (journalist) for potentially having committed crimes against humanity either as indirect co-perpetrators or as contributors to the crimes.

Two suspects, Major General Mohammed Ali, the former Commissioner of the Kenya Police and Henry Kosgey, suspended Minister for Industrialization, were not charged.

Under the provisions of the Rome Statute, the ICC Prosecutor, Louis Moreno Ocampo can seek further charges against the suspects based on additional evidence. Following the Court’s ruling, Ocampo stated that he will not appeal the “good decisions”, but will continue to collect factual evidence against Ali and Kosgey.

The decisions have generated interest and controversy partly due to the fact that the ICC is also intervening in a number of other African countries.

A recent study noted that 64% of Kenyans expressed support for the ICC process. Of this group, a majority observed that the ICC intervention marked the end of a culture of impunity that has long been the preserve of Kenya’s leaders.

Prior to the delivery of the decisions, there were speculations in the country on what the outcome of the confirmation of charges hearings would mean for the country. Two of the suspects, Uhuru Kenyatta and William Ruto have declared their interest in contesting for Kenya’s presidency in elections expected to happen anytime between December 2012 and March 2013.

The ICC’s Spokesperson, Fadi El Abdallah clarified that it is up to the Kenyan law and relevant institutions dealing with elections and not the ICC to determine the eligibility of any of the suspects to vie for public office. Uhuru and Ruto have since declared that the ICC decisions will not bar their intentions to vie for the top job in the country. The majority of Kenyans are expressing the view that criminal charges against a public officer or one who seeks public office goes against the spirit of the new Constitution of the Republic of Kenya, specifically Chapter Six which makes reference to the integrity of leaders in public office or seeking such office.

The ICC Chamber has decided not to order the detention of the four accused. According to Chamber, they however have to refrain from interfering with victims and they are also prohibited from engaging in hate speech or conduct that may incite the Kenyan population to violence.

While the ICC Pre-Trial Chamber has confirmed the charges against four of the suspects, many victims of the post-election violence find that the trial of four men is insufficient to redress the injustices generally occasioned to them. The victims of the post-election violence are confined to the internally displaced persons’ camps remain deprived of the enjoyment of their right to liberty because they cannot return to their homes. There are many perpetrators of the violence walking freely in Kenya and victims are calling for justice in Kenya.

The President of Kenya, Mwai Kibaki requested the Attorney General to advice the government on a way forward, the Attorney General has swiftly advised the setting up of a division within the High Court for purposes of bringing to account those responsible for the post-election violence. This is a victory for victims who may then enjoy their right to justice for the harm they have suffered. It also brings post-election violence victims closer to accessing reparations although at present there is no reparations policy in Kenya to guide a reparations programme that meets the stringent requirements of international law.

What is clear from the ICC interventions is that politics in Kenya is not business as usual, particularly as the country edges towards its elections. The norm during elections was the ethno-politicization of issues and alliances forged along ethnic lines often to the detriment of ‘lesser’ ethnic groups and the politics of violence against such groups as a tool to intimidate. Once state power has been clinched, the human rights abuses of these groups are never redressed but entrenched through further marginalization by the new state machinery.

Some of the now accused individuals have declared their intention to appeal against the majority decision of the Pre-Trial Chamber. This will delay the commencement of their trials. At the trial stage, Kenya has yet another opportunity to challenge the admissibility of cases.

Ocampo estimates that following the announcement by some of the accused to appeal the recent decision, the trial(s) would only commence towards the end of 2012 or at the beginning of 2013, coinciding with presidential campaigns in Kenya. Ocampo, whose term in office as ICC Prosecutor expires in June 2012, says that the situation in Kenya is an example for the world of a country managing its transition to democracy and the rule of law. Ms. Fatou Bensouda of The Gambia was elected by consensus in December 2011 by the Assembly of States Parties to take over as ICC Prosecutor. The interplay between the law and politics will take centre-stage with an African Prosecutor, leading the prosecution of cases before the ICC, which has been criticized mostly by the African Union itself for focusing its attention on the African continent to the exclusion of other pressing situations in other parts of the world. The ICC’s interventions in Kenya provide lessons for other countries where political process have led to the violence and human rights atrocities.

Allan Ngari is a Project Leader of the Kenya and International Justice Desk at the IJR. This article appeared in the Cape Times on 31 January 2012.

 

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