Kenya Awaits ICC Rulings; Calls Continue for New Charges on Kibera and Kisumu and for Local Tribunals

The International Criminal Court is widely expected to announce rulings by its Pre-Trial Panel in the cases against the “Ocampo Six” during the third week in January.  Today’s Standard details the various options available to the Panel:

The ICC could commit all or some of the six to trial, or decline to confirm the charges if it determines that there is insufficient evidence.

It could also opt to adjourn the hearing and request the Prosecutor to consider either providing further evidence or conducting further investigations, or amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.

Once the charges have been confirmed, the Presidency of the court shall constitute a Trial Chamber.

. . . .

Ruto and Kosgey are charged with being indirect co-perpetrators of murder, forcible transfer of populations and persecution. The court ruled that there was not enough evidence that Sang was an indirect co-perpetrator in the crimes, but accused him contributing to the same set of crimes. . . .

Uhuru and Muthaura are accused of being co-perpetrators of murder under Articles 7(l)(a)), forcible transfer of persons, rape, persecution and other inhumane acts while Ali is accused of contributing to their commission.

In an article yesterday, the Institute on War and Peace Reporting discusses the calls for renewed attempts to prosecute cases on the violence in Kibera and Kisumu:

Rights activists say international indictments in cases arising from post-election violence in Kenya in 2007-08 must be expanded to cover killings and other abuses committed by police in a Nairobi neighbourhood and the city of Kisumu.

Judges at the International Criminal Court, ICC, removed the two elements when they considered the prosecutor’s application for charges in March, saying there was insufficient evidence to pin them to the individuals accused.

Lawyers say the failure to charge three of the six suspects with the shootings means the victims of violence in Kibera and Kisumu feel left out of the justice process.

Kibera, a slum area of Nairobi, and Kisumu in western Kenya experienced some of the most brutal attacks in the violence that followed a December 2007 presidential election. The Commission of Inquiry into the Post-Election Violence, set up in February 2008 to investigate the violence, found that overall, the police killed 405 of a total of 1,100 people who died during the violence, and injured a further 557. The vast majority of killings by police are thought to have occurred in Kibera and Kisumu.

When he formulated charges against six senior figures accused of responsibility for the violence, ICC prosecutor Luis Moreno-Ocampo accused a group of three of them, who fall into one of the two cases he brought, of being behind the Kibera and Kisumu attacks.

. . . .

When ICC judges issued their ruling on Moreno-Ocampo’s application for charges on March 8, they found insufficient evidence had been presented to link the three PNU suspects to events in Kibera and Kisumu.

The judges said there were reasonable grounds to believe that Kenyan police shot and killed more than 60 people in Kisumu, and that police killed and raped civilians in Kibera. However, they took the view that the prosecutor had failed to demonstrate that crimes in Kibera and Kisumu were part of a wider state policy, so that they would fall within the court’s jurisdiction.

“The material presented by the prosecutor does not provide reasonable grounds to believe that the events which took place in Kisumu and/or in Kibera can be attributed to Muthaura, Kenyatta and/or Ali under any mode of liability,” the judges said in their ruling.

The judges’ ruling provoked outrage among victims and raised questions about the scope of the justice process, given the omission of two key focal points of the violence.

“[Nairobi] experienced a lot of violence and Kibera was the epicentre of it,” Priscilla Nyokabi, executive director of the legal aid centre Kituo Cha Sheria in Nairobi, said. “It will be so bad if Kibera is not made to feel a sense of justice.”

According to Godfrey Musila, an expert on international law based in Nairobi, “Ideally, charges brought by the prosecutor should reflect patterns of the violence. It undermines the court when the perception around is that the epicentres of the violations are out of the scope of the cases.”

Rights activists and legal experts are urging the ICC prosecutor to renew his request for judges to include Kibera and Kisumu in the charges against Muthaura, Kenyatta and Ali.

Moreno-Ocampo told IWPR in early December that he was gathering additional evidence on crimes committed in Kibera and Kisumu, but that he would not decide whether to ask for these charges to be added to the case until ICC judges had assessed his evidence of other crimes.

And Human Rights Watch’s “Turning Pebbles” report last month on accountability for post election violence called on Kenya to establish a special judicial mechanism or “local tribunal” to go beyond the few and limited charges being brought in the ICC system.

On Kibera, please see the report of exiled investigative journalist Clifford Derrick regarding his own experience as a victim of violence intended to stop him from reporting on illicit activity to disrupt the vote in Kibera.

US offering reassurance of support for ICC process on Kenya

Sunday Nation:  “Envoy: US will veto deferral of Kenyan ICC case:

The Obama administration will block any attempts to halt trials of post-election violence masterminds at The Hague, a decision which means government efforts to get the process deferred at the UN are almost certainly doomed to failure.

Outgoing US ambassador Michael Ranneberger told the Sunday Nation Washington would not back any delay of ICC action.

“The American position is that we want the ICC process to proceed expeditiously. We do not want to see the process delayed. We think that carrying through with the trials is absolutely crucial to fighting impunity and to ensuring accountability.”

The US holds veto power in the Security Council and a rejection of the petition by any one of the five permanent members of the Council means the appeal would stand defeated. Highly placed diplomatic sources also indicated that Britain and France were unlikely to support the Kenya bid for deferral.

Mr Ranneberger stopped short of stating that the US would apply its veto power when the deferral request comes up at the UN. But he said the Obama administration wanted The Hague process to continue without interruption.

“We never say in advance what our positions are to be (at the UN) so obviously I can’t say that we will veto. What I would say is that we do not see this effort to seek deferral as positive and we support a continuation of the process and we want to see the process move ahead expeditiously.”

Sunday Standard:  “Ranneberger explains why US backs The Hague process”:

Ranneberger: Let me be very clear. The US supports the ICC process and the reason is simple: There must be accountability for the post-election violence. Terrible crimes were committed, Kenyans deserve justice and it’s gone to the ICC and that process needs to be carried through. Our deputy secretary of state was very clear in his public statements that we support this process.

Q: Kenya is lobbying the permanent members of the UN Security Council, if that is put to the vote, what will be US’s likely position?

A: Nobody in the Security Council ever announces the answer hypothetically. The ICC process is vital to countering impunity and to ensure that type of violence never happens again. One of the biggest problems in Kenya and one of the things that have held this country back for so many years is the culture of impunity. And so these issues simply must be addressed.

Warning That U.S. might cave on ICC for Kenya and Sudan

Africa Confidential’s February 4 “free article” titled “Rewards and Realpolitik” should be troubling to those in civil society in Kenya and in the West who, like I do, consider the pending ICC prosecutions in Kenya to be crucial for addressing impunity.

Africa Confidential suggests that the United States and France are giving serious consideration to acting in the U.N. Security Council to agree to defer prosecution of Sudan’s al-Bashir as part of the “carrot” approach endorsed by Envoy Gration and others to try to maximize his cooperation on the split with the South and on Darfur. Reportedly some detailed conversations at high levels of the State Department have taken place. A Sudanese source reportedly says that a deferment for the “crimes against humanity” charges for the six Kenyan suspects would be thrown in as part of a deal with the AU to provide diplomatic cover on accusations of a “double standard”.

Please take time to read the whole detailed article and weigh in if you care about this.

David Throup of CSIS wrote a useful thumbnail overview of the post election violence in Kenya and the underlying ethnic and political tensions. While David was controversial as an outspoken critic of the EU election observation in Kenya, it should be noted that his own calculations as initially discussed publicly in Washington had Kibaki losing the election and claiming victory through fraud, so in that sense he has been part of the overall international consensus regarding the voting. The crucial point is that there were different types of violence that happened for different reasons–thus demanding a differentiated response as reflected in ICC prosecutor Ocampo’s selection of cases to bring forward.

“The International Criminal Court and the Post-Election Violence in Kenya” by David Throup at CSIS’s Online Africa Policy Forum Blog.

Most Kenyans, according to opinion polls by the local press, however, believe that the six named individuals should be prosecuted. They are right–the era of impunity must be ended. Most of those displaced in 2008 still remain in encampments, too frightened to return to their homes. The next election may well be even more closely contested and violent unless a clear message is sent that the era of impunity is over and that perpetrators of violence will either be tried in Kenya’s courts or appear before the International Criminal Court. Both Kalenjin and Kikuyu as Kenyans have the right to live and farm in the Rift Valley and in other parts of the country. As Kenya becomes more ethnically intermixed, ideas of ethnic hegemony and arguably the era of ethnic-politics can no longer be tolerated.

There is, however, one danger. William Ruto and Uhuru Kenyatta are “big men”. . . The ICC preliminary charges may possibly intensify ethnic identities, uniting the Kikuyu and Kalenjin communities in a joint sense of persecution. Uhuru Kenyatta and William Ruto are highly regarded in their communities and would constitute a formidable alliance at the next election. The ICC and the international community should proceed with caution and encourage moderate voices which urge compliance in the hope of a better Kenya.

As far as Kenya goes, the perception that Ruto and Kenyatta and associates, with Kibaki’s help, successfully faced down the ICC and the international community generally, seems to me to be about the worst thing that could happen in terms of enshrining impunity and deterring further reform efforts by Kenyan citizens and civil society. Even if the Administration takes the approach of protecting al-Bashir, it would seem especially cowardly to sacrifice Kenya in the mix for the reasons suggested here.

The human rights community in the U.S. seemed to be caught off guard when the Administration issued blanket waivers for countries employing child soldiers, so presumably they will not be complacent now.

Prime Minister dismisses Kenyan Parliament vote against ICC process

Radio France International has an exclusive interview with PM Raila Odinga on the nearly unanimous vote in Parliament calling for Kenya to withdraw from the ICC:

The motion was passed during a late night session – with some MPs  labeling the ICC as “colonial” and “anti-African”.

But Odinga told RFI that nobody should pay attention to the motion.

“It cannot help anybody because the process that has started cannot be stopped, even if the country were to decide to pull out of the ICC today,” Odinga said.

“This is part of our constitution which requires a referendum to change … A mere vote in parliament is just an expression of opinion and does not hold any legal weight.”

Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya

“People, it is THREE YEARS since the election, isn’t it . . . ”

Surely it is a simple choice between the ICC and impunity at this point. Every Kenyan is is entitled to his or her opinion as to what is best, but it would be unfortunate to be diverted into fantasy in looking at the way forward. Who is it that said that the ICC process was ideal or perfect? The choice of the ICC was made with eyes open. It is only the desire to preserve the ground rules that accountability can only go so high, that certain “champions” are untouchable, no matter what they do, that has triggered the “buyers’ remorse” we are seeing now with the choice of the ICC.

Remember that the Truth Justice and Reconciliation Commission was sold as an alternative to legal trials. Now we see that Parliament was sitting on a report calling for Bethwel Kiplagat to be investigated for an alleged role in the Ouko murder when they approved him as head of the TJRC. I don’t buy the idea that any local tribunal now in Kenya could take on the highest level of suspects in the post election violence, and I think that is the whole point.

Why be concerned about election violence with the Kenyan referendum?

It seems to me that there are several obvious reasons.

Most basic is the simple fact that since Moi relenquished de jure one-party KANU control, there has been significant violence in each national election that was close (the 2002 presidential election was a landslide and featured Moi fronting a Kikuyu standard bearer who was not strong in Central Province against a Kikuyu establishment figure supported by Raila Odinga–in other words, a sui generis “perfect calm”; likewise the 2005 Referendum was not especially close and followed the 2002 general.) The “usual suspects” from 1992, 1997 and 2007 are still in power in government and business and have ample resources available.

There has been no meaningful progress yet in regard to the “culture of impunity”. The Government of National Unity has not delivered a local tribunal to address the crimes layed out in the Waki Commission report. The ICC process is still hoped for, but has not resulted in indictments of anyone to date and the key people expected to someday face the ICC are very much players in the GNU today and will be for the forseeable future.

The “Truth and Reconciliation” process was politically stillborn in terms of doing anything that would have changed the dynamic of tension for this election.

The Waki Commission report shows that the Kenyan intelligence service knew about significant issues of likely planned violence ahead of the 2007 election, but action was not taken to stop it. No explanation of this has been provided, nor are there obvious reforms implemented to make sure that the same situation (whatever it was) is not repeated.

Corruption is more entrenched than ever, in the sense that no real action has been delivered in response to even the new, and in some cases, particularly outrageous scandals coming from the Government of National Unity–much less anything about Goldenburg and Anglo Leasing and all the many, many other scams that have created pools of ill gotten gains that can be reinvested in politics as needed.

Even the newspapers have reported ethnic threats in the Rift Valley, and ethnic rhetoric is clearly being employed. To the baseline of ethnic tension, and ethnic division within religious groups that was a problem in 2007 has been added an increase in tension between many churches and the State over views or interpretations related to the khadi’s courts and abortion. These is always some baseline of tension between many Muslims and the State, but now there seem to be attempts to drive a much greater wedge between Muslims and Christians themselves at a grassroots level.

I could go on.

To top it off, it was clear by last fall that there was a significant ramping up of the flow of guns and ammunition into areas where there had been violence featuring more “traditional” weapons in 2008. And six people were killed by two grenades in Uhuru Park as the campaign kicked off.

This is not a prediction of violence–but rather an assessment that all the necessary ingredients are there. By all means we should hope for the best and pray for peace. But we should also be mindful of the danger and the United States as a major donor and “ally” should not be caught off guard. We know how much suffering election violence can cause. Foolish complacency is the hobgoblin of little hearts.

Impunity Wins Again under GNU?: Business Daily reports “Pattni Gets Last Laugh in Grand Regency Saga”

The Big Story in Nairobi’s Business Daily reports the “closing yet another window for recovering billions of public money lost through the fraudulent gold export scheme” Goldenburg.

The newspaper has reviewed the reporting of the Central Bank of Kenya and discovered that it has written off Sh1.5B that remained due from a loan secured solely by the former Grand Regency Hotel.

The Business Daily reveals that the Cockar Report–delivered to President Kibaki but yet to be made public–concludes that the sale process was “flawed”, “secret” and “hasty”. The price received appears to reflect a gross undervaluation in that it could have been realized 13 years earlier–who thinks this hotel in downtown Nairobi was worth the same in the early 90s as in the late 00s?. Further, it appears that the Cockar Reports identifies a bidder who would have paid significantly more than the Libyan firm Laico–in fact an amount that would have paid the debt to the CBK in full!

The context: “Another commission, headed by Justice Samuel Bosire, concluded in a 2006 report that Kenya’s economy could have lost a total of Sh158 billion in the Goldenberg Scandal through a web of transactions that involved 487 companies and individuals.”; “Mr Kamlesh Pattni, who was named as a key player in the scam is understood to have surrendered Grand Regency to CBK in a ploy for amnesty from prosecution in the Goldenberg cases.”

Kudos to Business Daily Africa for diligence and solid reporting. Let’s hope they follow-up (in spite of the pressure I am sure they will receive not to).

Since I was working in Nairobi while this was ongoing, I can say that it was an open and obvious scam just from the basic issues that are apparently identified in the Cockar Report: secrecy, haste and an inexplicably low price.

The next question: Why? (in other words, who benefited?). Was this just a charitable impulse to transfer wealth from the Kenyan public to a group of private Libyan investors? Hard to imagine! What reason would the CBK have for selling to Laico for an amount that left a deficiency on the Pattni loan of Sh1.5B if another bidder was willing to pay the full amount and the hotel was probably worth even more? This would benefit neither the creditor nor the debtor. Did the buyers really pay more, in cash or other interests–just to someone else? Why the “haste” after so many years? Certainly the rumors at the time where that the dealmaking was wrapped up in the non-transparent financing of election expenses.

And why do we not have answers now?

As far as Pattni himself goes, it was interesting to see Pattni seem to spend quite a lot of money on his own Parliamentary campaign in Nairobi while getting few votes–and also see his “party” active elsewhere.

A basic rule of financial fraud that I have observed over many years is that if you want to steal and maximize your chances of keeping a whole lot of it if you get caught is that you should steal so much that you have plenty to spread around to “buy peace” afterwards. Sort of “the audacity of greed”.

Christmas Eve Arrests for Human Rights Marchers

Bunge La Mwananchi reports that 22 members of BLM and Kenyans for Justice and Development have been arrested and taken into police custody for the offense of engaging in a peaceful procession against impunity, noticed to police in advance by letter.  I guess it can be said that there is no impunity for political expression.

Kenyan Speaker on Law Enforcement and Impunity

Speaker of Parliament Marende has called for the enforcement of existing laws as the way to end impunity, in particular calling for MP and former Justice Minister Martha Karua to record a statement with the police to specify her charges that large bribes change hands to influence votes in Parliament.  At pains of being prosecuted for making a false statement if she doesn’t in fact back it up.

I agree with the Speaker that enforcement of existing laws is really the key to changing the environment of impunity for politicians.  New laws will not help if the law is ignored anyway.  Certainly there have been plenty of rumors and more specific stories in circulation about bribery in Parliament.  Almost two years in to this Parliament it certainly seems past time to face this head on.

A way to proceed is to have specific statements from those with knowledge and certainly MPs such as Ms. Karua should follow up.  But likewise the media should follow up.  Corruption issues are continually raised or hinted at in the Kenya media, or even covered in depth initially, but then nothing more.  For the Kenyan media to effectively fulfill any type of watchdog role, they will have to learn to start and finish these stories, and to do a lot more actual reporting rather than simply relaying to readers what the various politicians and officials have to say.

Likewise, there is no reason for law enforcement to wait for insiders to hand them the evidence.  We see in some areas that the various Kenyan law enforcement agencies can conduct investigations–why do they have to wait for insider whistleblowers?

I must say that I don’t agree with prosecuting a Member for what we in the US would call “speech and debate” in the legislature, but nonetheless, those with knowledge of bribery in Parliament do have an obligation to come forward–and should be protected in doing so.