International Criminal Court investigation in Kenya

Situation in the Republic of Kenya

The seal of the International Criminal Court
File no.	01/09
Refered by	Pre-Trial Chamber II
Date referred	31 March 2010
Date opened	31 March 2010
Incident(s)	2007–2008 Kenyan crisis
Crimes	Crimes against humanity: · Deportation · Inhumane acts · Murder · Persecution · Rape
Status of suspects
Mohammed Ali	Case in pre-trial stage
Uhuru Kenyatta	Case in pre-trial stage
Henry Kosgey	Case in pre-trial stage
Francis Muthaura	Case in pre-trial stage
William Ruto	Case in pre-trial stage
Joshua Sang	Case in pre-trial stage

The International Criminal Court investigation in Kenya or the situation in the Republic of Kenya is an ongoing investigation by the International Criminal Court (ICC) into the events surrounding the 2007–2008 post-election violence in Kenya. Following presidential and parliamentary elections which took place in Kenya in December 2007, official results were disputed and a period of violence and unrest ensued. The Electoral Commission of Kenya officially declared that the incumbent President Mwai Kibaki was re-elected; however supporters of the opposition candidate Raila Odinga accused the government of electoral fraud and rejected the results. A large series of protests and demonstrations followed, and fighting, mainly along tribal lines, led to many deaths, injuries and displacements. After failed attempts to conduct a criminal investigation in Kenya to prosecute the key perpetrators, the matter was referred to the International Criminal Court in The Hague. In 2010, the Prosecutor of the ICC announced that he was seeking summonses for six people, including the incumbent Deputy Prime Minister Uhuru Kenyatta and two other members of the National Assembly.^[1] The six suspects, known colloquially as the "Ocampo six" were indicted by the ICC's Pre-Trial Chamber II on 8 March 2011 and summoned to appear before the Court.^[2][3]

The government of Kenya and the National Assembly have both attempted to stop the ICC process. The government has appealed to both the United Nations Security Council and the Court itself regarding the admissibility of the case. Furthermore the National Assembly has voted in favour of removing Kenya as a State Party to the Rome Statute, the international treaty which established the ICC. Despite this opposition the suspects have cooperated with the proceedings and attended preliminary hearings in The Hague in April 2011. Hearings to decide whether to confirm the charges against the suspects concluded in September 2011. The option of holding these hearings in Kenya was considered by the Court, however the decision was made to hold the hearings at the seat of the Court in The Hague.

Background

Main article: 2007–2008 Kenyan crisis

Post-election violence in Nairobi

On 27 December 2007, a general election was held in Kenya, comprising parliamentary, presidential and civic elections.^[4] The incumbent President, Mwai Kibaki, who represents the Party of National Unity and Raila Odinga from the Orange Democratic Movement were the leading candidates. Early indications showed that Odinga was likely to win the election,^[4] however the results announced by the Electoral Commission of Kenya showed that Kibaki had been re-elected and he was sworn in as President. Immediately after the Electoral Commission's announcement, Odinga rejected the result, claiming that widespread electoral fraud had taken place. European Union electoral observers also claimed that the electoral commission had failed to ensure the credibility of the vote.^[5]

In the days that followed violence spread throughout the country. An estimated 1,200 people died and more than 500,000 were displaced from their homes.^[6] A government spokesman accused Odinga's supporters of "engaging in ethnic cleansing", while Odinga claimed that the President's supporters were "guilty, directly, of genocide".^[7] Violence was mainly perpetrated along tribal lines; Mwai Kibaki is part of the Kikuyu tribe, the largest tribe in Kenya, while Odinga is a Luo.^[8] Violence continued until a peace deal was agreed upon between Kibaki and Odinga under the mediation of former United Nations Secretary-General Kofi Annan, whereby Kibaki would remain as President and Odinga would take over the newly-created office of the Prime Minister.

Waki report and referral to the ICC

The mediation between Kibaki and Odinga in 2008 which resulted in a coalition government. In the mediation discussions the parties agreed to accords, one of which was to establish the Commission of Inquiry into the Post-Election Violence, chaired by Kenyan judge Philip Waki to investigate the violence and particularly the actions of the police. Waki's report recommended that the Kenyan government set up a tribunal to prosecute those responsible for the worst crimes. Although both Kibaki and Odinga voiced support for a local tribunal, the idea was rejected by the National Assembly. Waki passed his report, including a list of the names of those he considered most responsible for the violence back to Kofi Annan with instructions that it be passed to the International Criminal Court if progress with the local tribunal was not made. Annan gave the list, known as the "Waki List", to the International Criminal Court in July 2009. Initially the ICC gave the Kenyan government a deadline of July 2010 to establish a local tribunal before it would refer the case to the ICC Prosecutor Luis Moreno Ocampo.^[9] The "Waki List" has so far not been made public, and there is speculation that it may contain more names than the six who were initially indicted by the ICC; consequently there have been some calls in Kenya for either the ICC or Waki to release the list.^[10]

Pre-Trial Chamber authorization

Following the application by Moreno Ocampo dated 26 November 2009, Pre-Trial Chamber II granted authorization to the Office of the Prosecutor to conduct an investigation on 31 March 2010. The judges who made this decision, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser noted in their written ruling that while Article 15 of the Rome Statute does provide for allowing the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC.^[11] In the ICC's history, this case was the first time the Prosecutor decided to investigate a case in this manner, with all prior cases being referred to the Court either by a national government, or by the United Nations Security Council.^[12]

Judge Hans-Peter Kaul made a dissenting opinion in the judgment, but the judgment was passed by a 2–1 majority. In his dissent he wrote:

In essence, the main reason for this position is the following: both, my interpretation of article 7(2) (a) of the [Rome] Statute, which sets out the legal definition of "attack directed against any civilian population" as constitutive contextual element of crimes against humanity, and my examination of the Prosecutor's Request and supporting material, including the victims' representations, have led me to conclude that the acts which occurred on the territory of the Republic of Kenya do not qualify as crimes against humanity falling under the jurisdictional ambit of the Court.^[11]

—Hans-Peter Kaul

Suspects

On 15 December 2010, Prosecutor Luis Moreno Ocampo named six suspects, and made an application to Pre-Trial Chamber II for summonses to be issued to them.^[13][14] The six men became colloquially known as the Ocampo Six (or Ocampo 6).^[15] The individuals named by Moreno Ocampo were:

• Mohammed Hussein Ali – the Chief Executive of the Postal Corporation of Kenya, who at the time of the post-election violence had been the Commissioner of the Kenya Police, he was accused of facilitating attacks against supporters of Odinga's Orange Democratic Movement (ODM);
• Uhuru Muigai Kenyatta – the Deputy Prime Minister and Minister for Finance, he was accused of mobilising the outlawed Mungiki group to attack ODM supporters;
• Henry Kiprono Kosgey – the Minister for Industrialisation and member of the National Assembly for the Tinderet Constituency, he was also accused of planning and organizing crimes against supporters of Kibaki's Party of National Unity (PNU);
• Francis Kirimi Muthaura – the cabinet secretary and chairman of the National Security Advisory Committee, he was accused of authorising the police to use excessive force against ODM supporters and to facilitate attacks against the opposition;
• William Samoei Ruto – the Minister for Higher Education, Science and Technology and member of the National Assembly for the Eldoret North Constituency, he was accused of planning and organizing crimes against PNU supporters
• Joshua Arap Sang – the head of operations at the radio station KASS FM, he was accused of using his radio broadcasts to send messages of assistance to those committing acts of violence against PNU supporters.

Legal representation

It was reported in 2011 that Kenyatta has recruited British lawyers Steven Kay and Gillian Higgins, who previously defended Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, to lead his legal team. Francis Muthaura initially appointed another British lawyer, Karim Ahmad Khan, who previously led the defence of Charles Taylor at the Special Court for Sierra Leone, and subsequently also recruited Essa Faal and Shyamala Alagendra who both formerly worked in the ICC Prosecutor's office.^[16] Ali's defense will be led by Canadian John Philpot, Kosgey's will be led by Julius Kemboi, and William Ruto has appointed Dr. Kindiki Kithure and Katwa Kigeni (Kigeni is also representing Joshua Sang).^[17] The Kenyan government has agreed to pay the legal costs of Francis Muthaura and Mohamed Ali due to their actions being taken in the course of their public employment.^[18] This decision has attracted criticism from many Kenyans.^[19]

Charges

The ICC's temporary headquarters in The Hague

On 8 March 2011 Pre-Trial Chamber II issued its verdict that there were reasonable grounds to believe that the six suspects named by Moreno Ocampo had committed crimes against humanity and issued summonses for their appearance in the Court. The charges against the six suspects were divided into two separate cases, one case is the prosecution of Ali, Kenyatta, and Mathaura, and the second case is the prosecution of Kosgey, Ruto, and Sang.

William Ruto, Henry Kosgey, and Joshua Sang

In the case which concerns the Orange Democratic Movement's supporters' actions against the supporters of the government, William Ruto, Henry Kosgey, and Joshua Sang were charges with three counts of crimes against humanity:

1. Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute;
2. Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute;
3. Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute.

Pre-Trial Chamber II ruled that there were reasonable grounds to be believe that William Ruto and Henry Kosgey were criminally responsible as indirect co-perpetrators of these crimes but in the case of Joshua Sang, it ruled that his involvement was not essential to the commission of the crimes and so only ruled that there were grounds to believe he otherwise contributed to the crimes. Additionally, the Chamber rejected the request by the Prosecutor to include a further charge of torture.^[20]

Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali

In the case which concerns the members and supporters of the government's actions against the opposition, Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali were charged with five counts of crimes against humanity:

1. Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute;
2. Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute;
3. Rape and other forms of sexual violence, constituting a crime against humanity in violation of articles 7(1)(g) of the Rome Statute;
4. Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute;
5. Inhumane acts, constituting a crime against humanity in violation of articles 7(1)(k) of the Rome Statute.

The Chamber ruled that there were reasonable grounds to believe that Uhuru Kenyatta and Francis Muthaura were guilty as indirect co-perpetrators of these crimes. In the case of Mohammed Ali, the Chamber ruled that his contribution was not essential to the commission of the crimes and so he was charged with having otherwise contributed to the same crimes.^[21]

Pre-trial phase

Kenya, shown in green

On 8 March 2011, Pre-Trial Chamber II issued summonses to appear for all six of the suspects in the two cases. As with the decision to authorise the investigation by the Prosecutor, Judge Hans-Peter Kaul dissented and opposed the issuance of summonses.

Initial hearings

On 7 April 2011, the initial hearing took place in the case of Ruto, Kosgey, and Sang, and the following day the corresponding hearing in the case of Kenyatta, Ali, and Mathaura also took place at the seat of the Court in The Hague. During the hearing, presiding Judge Ekaterina Trendafilova expressed concern at some of the actions of the suspects, in particular speeches that may have been made in an attempt to incite further violence in Kenya. Speaking at the initial hearing she said:

It came to the knowledge of the Chamber by way of following some articles in the Kenyan newspapers that there are some movements towards retriggering the violence in the country by way of using some dangerous speeches. I would like to remind the suspects – and I'm not referring to anyone in particular but this is a general point to be made to all the suspects – that such type of action could be perceived as a sort of inducement which may constitute the breach of one of the conditions set out in the summonses to appear, namely, to continue committing crimes within the jurisdiction of the Court. Accordingly, this might prompt the Chamber to replace the summonses to appear with warrants of arrest.

—Ekatrina Trendafilova, ^[22]

The hearing in the case of Ruto, Kosgey and Sang began on 1 September 2011 and concluded on 12 September.^[23] The judges are now deliberating and will issue a judgement within 60 days. The hearing in the case of Kenyatta, Ali and Mathaura began on 21 September 2011.^[24] An application by the Office of the Prosecutor to impose conditions on the suspects' summonses including that they provide details of all their home addresses and that they pay a bond to the Court was rejected by Judge Trendafilova.^[25]

Location of confirmation of charges hearings

In June 2011, Pre-Trial Chamber II requested that the Prosecutor, defendants, and victims comment on the possibility of holding the confirmation of charges hearings in Kenya rather than in The Hague.^[26] This move was supported by Amnesty International, which claimed that holding the hearings in Kenya would bring the justice process closer to victims.^[27] The idea of holding the hearings in Kenya was also supported by the defendants Francis Mathaura and Henry Kosgey, with Mathaura suggesting holding the hearings in a military barracks for enhanced security as well as suggesting the possibility of holding the hearings in Arusha, Tanzania, which is the location of the International Criminal Tribunal for Rwanda.^[28] The move was opposed by the Prosecution, who cited security concerns as an obstacle,^[29] and also by Ali, Kenyatta, Ruto, and Sang who cited the possibility that a change of venue would lead to delays in the trial process in submissions made to the Court.^[28] On 29 June Judge Trendafilova ruled that the hearings will take place at the seat of the Court in The Hague.^[30]

Participation of victims

The procedures of the ICC allow for the participation of victims who may submit views and observations to the Court and also apply for reparations.^[31][32] As of 28 June 2011, at least 2,350 Kenyans have requested to participate in the legal process as victims.^[33] The Court's Victims Participation and Reparations Section manages the participation of victims in the trials before the Court.

Response within Kenya

On 22 December 2010, a week after the ICC Prosecutor announced the individuals he was seeking to prosecute, the Kenyan National Assembly passed a motion seeking to withdraw Kenya as a State Party the Rome Statute, the treaty which established the International Criminal Court is founded. The motion, which was introduced by Assemblymember Isaac Ruto had previously been thrown out of the National Assembly by Deputy Speaker Farah Maalim who ruled it was unconstitutional; however an amended version was introduced the following day and passed. During the debate, the Minister for Energy Kiraitu Murungi claimed the ICC was a colonialist, imperialist court.^[34] This motion did not itself affect Kenya's status as a State Party to the Rome Statute, but rather obliges ministers to move to repeal Kenya's International Crimes Act which ratified the Rome Statute and made necessarily changes to Kenyan's criminal code.^[35] In February 2011, Kenya appealed to the United Nations Security Council, asking it to defer the trials at The Hague.^[36] Some critics in Kenya have also questioned the constitutionality of the Rome Statute, arguing that it is incompatible with the Constitution of Kenya, which was passed by a referendum in 2010.^[37]

The Kenyan government's attempt to defer the cases at the ICC by appealing to members of the UN Security Council failed without being voted on,^[38] however the government, represented by British lawyers Geoffrey Nice and Rodney Dixon,^[39] have subsequently applied directly to the Court. The Kenyan government's application to Pre-Trial Chamber II that the two cases were inadmissible was rejected unanimously by the judges.^[40] Many victims of the post-election violence voiced opposition to the government's stance,^[39] and a poll of Kenyans conducted by Synovate shortly after Moreno Ocampo's announcement that he intended to seek summonses showed that 60% of Kenyans supported the trial of the accused taking place in The Hague.^[41]

International response

Following Moreno Ocampo's initial announcement of his intention to bring prosecutions against the six suspects, United States President Barack Obama called upon Kenya to cooperate with the ICC.^[42] In a statement he said:

I urge all of Kenya's leaders, and the people whom they serve, to cooperate fully with the ICC investigation and remain focused on implementation of the reform agenda and the future of your nation. Those found responsible will be held accountable for their crimes as individuals. No community should be singled out for shame or held collectively responsible. Let the accused carry their own burdens – and let us keep in mind that under the ICC process they are innocent until proven guilty. As you move forward, Kenyans can count on the United States as a friend and partner.

—Barack Obama

The African Union endorsed the position of the Kenyan government in seeking to delay or postpone the ICC proceedings.^[43] As of 2011, all of the formal investigations which have been put before the International Criminal Court have concerned African countries, and only African defendants have been indicted. This has led to some resentment within Africa that the Court is targeting Africa unfairly. In particular the African Union has cited this geographical imbalance of ICC investigations in its decisions not to cooperate in the proceedings against Sudanese President Omar al-Bashir and Libyan leader Muammar Gaddafi.^[44][45] The ICC Deputy Prosecutor Fatou Bensouda denied that the ICC or its prosecutors are discriminatory, speaking in Côte d'Ivoire she said:

Anytime I hear this about ICC targeting Africa, ICC doing double justice, it saddens me, especially as an African woman, also knowing that these conflicts, most of these conflicts are happening on the continent of Africa

—Fatou Bensouda^[44]

References

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3. ^ Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, International Criminal Court, 2011-03-08, http://www.icc-cpi.int/iccdocs/doc/doc1037044.pdf, retrieved 2011-07-12 
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19. ^ "Kenya: IDPs Criticise Legal Fee Plan for Officials". Daily Nation (AllAfrica.com). 2011-01-16. http://allafrica.com/stories/201101170063.html. Retrieved 2011-04-30. 
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27. ^ "Response to the International Criminal Court (ICC) Proposal to Hold Confirmation of Charges Hearings in Kenya". Amnesty International. 2011-06-14. http://www.amnesty.org/en/for-media/press-releases/response-international-criminal-court-icc-proposal-hold-confirmation-charge. Retrieved 2011-07-12. 
28. ^ ^{a b} Mathenge, Oliver (2011-06-18). "Hague Six differ over proposal to relocate hearings". Daily Nation. http://www.nation.co.ke/News/politics/Hague+Six+differ+over+proposal+to+relocate+hearings+/-/1064/1184944/-/item/1/-/r2hgie/-/index.html. Retrieved 2011-07-12. 
29. ^ Mathenge, Oliver (2011-06-13). "Ocampo opposes plan for ICC hearings in Kenya". Daily Nation. http://www.nation.co.ke/News/politics/-/1064/1180358/-/7t84va/-/index.html. Retrieved 2011-07-12. 
30. ^ Mathenge, Oliver (2011-06-29). "ICC Kenya hearings set for The Hague". Daily Nation. http://www.nation.co.ke/News/politics/ICC+Kenya+hearings+set+for+The+Hague+/-/1064/1191458/-/jr9995/-/index.html. Retrieved 2011-07-12. 
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37. ^ Okoiti, Okiya Omtata (2010-12-24). "Our continued membership of the ICC is against the new Constitution". Daily Nation. http://www.nation.co.ke/oped/Opinion/-/440808/1078362/-/nu53gyz/-/index.html. Retrieved 2011-04-30. 
38. ^ Kelley, Kevin J. (2011-03-19). "Why Kenya failed to defer ICC cases at Security Council". Daily Nation. http://www.nation.co.ke/News/politics/Why+Kenya+failed+to+defer+ICC+cases+at+Security+Council+/-/1064/1129160/-/m4rw3gz/-/. Retrieved 2011-04-30. 
39. ^ ^{a b} Mathenge, Oliver (2011-04-21). "Chaos victims oppose Govt move in Hague case". Daily Nation. http://www.nation.co.ke/News/politics/Chaos+victims+oppose+Govt+move+in+ICC+case/-/1064/1148596/-/qxalcxz/-/index.html. Retrieved 2011-04-30. 
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41. ^ Menya, Walter (2010-12-24). "Kenyans want Ocampo Six tried in Hague". Daily Nation. http://www.nation.co.ke/News/politics/Kenyans+want++Ocampo+Six+tried+in+Hague+/-/1064/1078458/-/51krdyz/-/index.html. Retrieved 2011-04-30. 
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45. ^ "African Union in rift with court". BBC News. 2009-07-03. http://news.bbc.co.uk/1/hi/8133925.stm. Retrieved 2011-07-12. 

External links

• Situation in the Republic of Kenya – International Criminal Court