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.

Will Kenyan ICC defendants ever become “too hot to touch” for the U.S. and other Western players in Kenya? If so, when?

With the second round of “confirmation” hearings underway in the Hague for the charges against “the Ocampo Six” this week and next, the U.S. and other Western “donors” and supporters of Kenya’s Grand Coalition Government are confronted with the spectacle of Kenya’s Deputy Prime Minister and Finance Minister in the dock facing charges of egregious crimes of international significance. Of the six, five either have significant current jobs in the Kenyan government or are Members of Parliament (or both in the case of the Deputy Prime Minister/Finance Minister Uhuru Kenyatta).

The current Grand Coalition Government was formed as the preferred donor approach to the 2007 Kenyan election debacle–the U.S. quickly asserted that it was impossible to conduct any sort of remedial activity about the election, that both sides “needed each other” and should cut a deal to share power. The Europeans soon fell in line. The current Kenyan government, as represented in the Hague trials, is not a creation of the Kenyan voting public, but rather of the political elites on “both sides” along with the “international community” led by key players in Kenya, most especially the United States. The U.S. is said to have insisted that the coalition not be temporary but remain in place a full five years as if ordinarily elected.  In playing this role, did we not take on some responsibilities besides promoting conceptual reforms that might or might not bear fruit in the future?

I was in Kenya as these crimes were happening. Who really believes that Ocampo is making these things up?

Irrespective of whether Ocampo, or more likely his successor, ultimately wins convictions eventually, what is it that we need to know that we don’t know now to decide whether or not the defendants are ordinary political leaders of an allied country which we support and with whom we conduct “business as usual” or are ordinary defendants charged with crimes against humanity directed at their own people, and while facing trial worthy of some decent level of distance and disapproval?

Make no mistake about the defendants continued reliance on attempts to rally tribal solidarity.  Take note of  Uhuru Kenyatta’s approach to the charges that he was a primary mover in unleashing the Mungiki to murder Luos in the eastern Rift Valley as a political counterbalance to Kalenjin militia attacks on Kikuyu further west, from today’s Standard:

A lawyer representing 233 victims of post-election violence accused Finance Minister and Deputy Prime Minister Uhuru Kenyatta of uttering inflammatory statements on the eve of his appearance at The Hague.

The lawyer, Mr Morris Anyah, used press reports carried on September 19 in which the minister was allegedly quoted saying, “we are going to The Hague and we know justice will prevail, because we did nothing wrong and all we did was to support our people”.

He claimed that the statement had tribal connotations and was intended to justify retaliatory attacks that are subject of charges against Uhuru before the ICC.

On Wednesday, the lawyer said the statement, which seems to proclaim Uhuru’s innocence holds a deadly meaning in the tribal context of the 2007/2008 post-election violence.

If the defendants at the Hague this week had wanted to “support” any of the Kenyan people, or otherwise defend Kikuyu farmers and villagers in the Rift Valley, they could have used the government security forces at their disposal to secure “hot spots” in the Rift Valley rather than Uhuru Park in Nairobi, and could have more generally used the security forces for security instead of for the election effort.  What Ocampo is laying bare on both sides is tactical mass murder for politics–this was never war, it was politics by Kenyan means.

“A reply to concerned commenters on the Ocampo charges” and preparing for 2012 in Kenya

This is something I prepared last December at the time the ICC prosecutor initiated his charges against “the Ocampo Six”.  Now that another four months has gone by, and we are many more months away from knowing whether any trials for the Kenyan post election violence will proceed, I thought it was worth revisiting:

With respect, it is hard for me to believe that anyone seriously thinks that [former ECK Chairman] Kivuitu himself was the primary manipulator of the election results. It happened on his watch, yes. He failed, but was not the primary instigator, nor beneficiary. I am very sad that the Kreigler Commission charged with investigating the election chose to fence off from review what happened with the presidential results–this is a great loss. Nonetheless, the charges of crimes against humanity sought by Ocampo as prosecutor before the ICC will stand or fall on their own merits. While Mr. Ocampo was not elected, he was appointed through a lawful process established by the countries, including Kenya, who are State Parties to the ICC convention. What prosecutors in Kenya are elected? Yes, there are more people who could be charged with more crimes–but the cold reality is that it is almost three years since the election, and it is the ICC or nothing and no one. This is less than it could have been, but far better than nothing.

Having lived with my family in Nairobi through the campaign, voting and violence, aside from my role in supporting the election process , the observation mission and exit poll, I fully appreciate the angst over the manipulation of the results after a peaceful vote, and over the role of the authorities in both the manipulation itself and in contributing to the violence by suppressing lawful protest and even murdering innocent citizens. To date no one has been prosecuted for any of this–Ocampo’s charges against Ali are a breakthrough in this regard. Ocampo is not seeking charges against anyone from the opposition for the chaos caused by the stolen election, but rather for crimes against humanity in the Rift Valley that are akin to the violence there in 3 of the last 4 elections. The judges will decide whether the indictments are issued, and if so, the trials will proceed with both sides presenting their evidence.

To say something further that I have not said publicly before, I do want to be clear that it is my personal belief that bribery of Kenyan election officials is “what happened” in the presidential election. I have not written or spoken publicly of this before because I claim no evidence or personal knowledge. In the first instance, it is what I was told by a senior diplomat (not U.S. Ambassador Ranneberger or anyone who worked for him) during that the post election period. It was explained to me that clear evidence had been identified. I accepted this as being explained to me not as gossip or a matter of personal interest, but as important information that I needed to know in the context of my job. There was no discussion of confidentiality, but it was what I will call a “private conversation in a public place”. Nothing clandestine, nothing that I was not to report back privately or act on but obviously not something I could “go public” with without being provided more detail and evidence which wasn’t offered.

Everything else I have learned since then is consistent with what I was told, and nothing is contradictory. I still have no personal knowledge or evidence, but it is what I do believe. This is one significant part of why I continued to be of the opinion that the exit poll indicating an opposition victory in the presidential race should be released.

Certainly the last election is very much “water under the bridge”, but now Parliament must grapple with constituting a new Election Commission for the current election season with campaigns already gearing up. Kenya very much needs better election officials this time than last time. The technical capacity to hold a clean election is certainly there–as we know from 2002, and the referendum in 2005 and in 2010. The moral capacity for tragedy and chaos is there, too, as we know from 2007.