Tag Archives: post election violence

ICC Confirms Charges Against Four (Ruto, Sang, Kenyatta, Muthaura)–Drops Cases Against Two (Kosgey, Ali)

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The 4 and 2 split is consistent with speculation I was hearing last fall at the African Studies Association, but not necessarily with the right defendants confirmed. or dismissed.

It will be very interesting to see how various elements of the Government of Kenya react to this. The Government sought to get the reference withdrawn in the cases and lobbied hard against the cases in the Security Council. Now that the hope of early dismissal has been dashed, the Government will be in a bind, especially with Finance Minister “in the dock”.

Court notes that presumption of innocence continues to apply, but that liberty of the suspects pre-trial is dependent on refraining from incitement and hate speech.

Another 2-1 ruling with a dissenting opinion forthcoming.

Here is the Court’s Summary as released.

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

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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.

What Wangari Maathai had to say during the Post Election Violence

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Interview on NPR’s Tell Me More, January 17, 2008, “Nobel Laureate Explains Kenya’s Battle for Peace”:

Dr. MAATHAI: I believe that  what we are experiencing is the reason that I lost the seat. Since the year 2003, I’ve been trying to tell our side of the government that it is very important to accommodate Raila Odinga and his team, who at that time, were part of the government.

But we have agreed in a written memorandum of understanding that we would share a power a certain way. And that we did not do when we formed the government. And that was actually the beginning of this problem – that many other issues have happened in between. And for me, because I’ve been raising my voice and been telling the government that we need to listen to what the people are saying, we need to pay attention to the public opinion led by Raila and his team, I was perceived it to be anti-President Kibaki. I was projected as an anti-Kibaki person in the media that is dominantly supporting President Kibaki. And so I was punished for really trying to tell the people that we need to avoid the kind of crisis we are now in.

.  .  .  .

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Updated 3 Sept: ICC “Confirmation” hearings underway for Ruto, Kosgey and Sang

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A good way to keep up with the proceedings is through the website ICC Kenya Monitor.

The website includes a “watch now” link for the live proceedings using Microsoft Player, detailed daily summaries and various links and resources.

Keep in mind that rulings are not expected until late this year as to whether the charges will be “confirmed” by the judges so as to go forward toward trial in 2012.

US offering reassurance of support for ICC process on Kenya

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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

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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.

Kenyan reactions to the ICC cases

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Maina Kiai has the best articulation I have seen of the problems with the response to the naming of the ICC suspects at his blog this week under the title “After the Ocampo List: Let’s Get the Facts Straight”:

The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue… More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality . . .

For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent – for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action – from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality. . . .

It is not too late, nor too expensive, for some bit of justice here, it seems to me.  While it is a crime in itself that no one is being prosecuted directly for the election crimes, it seems to me that the prosecution of the police commissioner is at least a prosecution of the direct state actor in charge of enforcing the election theft by suppressing the inevitable protests.  Beyond that the ethnic-related militia killings addressed in the other Ocampo charges are exactly the kind of crimes against humanity that surely do  not have to be tolerated in the twenty-first century in a country like Kenya, irrespective of election competition.  Far from doing anything for the cause of electoral justice, Kalenjin militias being turned against Kikuyus in the Rift Valley helped solidify Kibaki’s hold on power after he was sworn in such openly questionable circumstances.

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Prime Minister dismisses Kenyan Parliament vote against ICC process

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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

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“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.

Kibaki pledges no action for now against six suspects; key reading on Rift Valley

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From Capital FM, “Ocampo Six can rest easy, Kibaki says”

NAIROBI, Kenya, Dec 15 – President Mwai Kibaki has made it clear that he does not plan to take any action against government officials named by ICC Prosecutor Luis Moreno Ocampo as suspected masterminds of the post election violence.

In a statement sent from State House on Wednesday afternoon, the Head of State said calls for action against those named were “prejudicial, pre-emptive and against the rules of natural justice.”

Christian Science Monitor series by Scott Baldauf:

Part 1: As ICC names suspect Kenyan leaders, records reveal talk of more ethnic cleansing

Part 2: Why one young Kenyan decided to kill for an ethnic militia

Part 3: In Kenya, the deep pull of land drove grievances – and ethnic violence

Part 4: Threats to Kenya’s ICC witnesses: Traitors will be dealt with ‘ruthlessly’

RELATED: The six men accused of inciting Kenya’s post-election violence