* Gentian Zyberi, Associate Professor, Norwegian Centre for Human Rights (NCHR), University of Oslo.
* Agnieszka Cybulska; Research Assistant at the Norwegian Centre for Human Rights (NCHR), University of Oslo. BCs in International Relations from Lillehammer University College, and a MPhil in Theory and Practice of Human Rights from the University of Oslo.
Introduction
This is the first of three blog-posts addressing the situation of Kenya before the ICC, authored by Agnieszka Cybulska and myself. The posts will focus on the legal processes before the ICC and the dynamics and the involvement of different actors in these legal processes.
Post-election violence
The 2007/08 Kenyan crisis was a political, economic and humanitarian crisis that erupted in Kenya after incumbent President and leader of the Party of National Unity (PNU) Mwai Kibaki was declared the winner of the presidential election held on December 27, 2007. Kibaki was running against the leader of the Orange Democratic Movement (ODM), Raila Odinga, who according to opinion tolls maintained a slight edge over Kibaki throughout most of the campaign.[1] Supporters of the opposition alleged electoral manipulation after the declared results – an electoral fraud that was confirmed by international observers.[2] Within moments of the announcement, violence erupted in two opposition strongholds, Kibera and Kisumu, which later spread throughout the country resulting in the reported death of over 1,200 persons, a massive destruction of property and several hundred thousand displacements. Credible evidence suggests that many attacks were organised, reportedly by political and/or traditional leaders.[3]
Case referral to the International Criminal Court (ICC)
The matter was taken up by the International Criminal Court (ICC) through a filed request by the ICC Prosecutor, Luis Moreno Ocampo, on 26 November 2009 to commence an investigation into the situation pursuant to article 15(3) of the Rome Statute. The Kenyan authorities had failed to establish national proceedings against those bearing the greatest responsibility for the crimes against humanity allegedly committed, and there was neither any prospect of such prosecution. The Prosecutor stated that there were only limited numbers of proceedings for a range of lesser offences, inter alia, malicious damage, theft, house breaking, possession of offensive weapons, and robbery with violence, but a lack of investigation regarding the most serious crimes.[4] On 31 March 2010, Pre-Trial Chamber II authorized, by majority, commencement of the investigation in relation to crimes against humanity committed within the jurisdiction of the Court.[5] On 15 December 2010 the Prosecutor requested Pre-Trail Chamber II, composed of Judge Hans-Peter Kaul, Cuno Tarfusser and Ekatarina Trendafilova, to issue summonses to appear for six Kenyans on the basis that there existed reasonable grounds to believe that they were criminally responsible for the crimes against humanity that occurred in the aftermath of the presidential election.[6] These included: Deputy Prime Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgey, Education Minister William Ruto, Cabinet Secretary Francis Muthaura, radio executive Joshua Arap Sang and former police commissioner Mohammed Hussein Ali.
The confirmation of charges hearing was held throughout September and October 2011. On 23 January 2012 the Judges declines to confirm the charges against Mr Kosgey and Mr Ali. On 18 March 2013, the charges against Francis Kirimi Muthaura were withdrawn.[7] Deputy Minister William Samoei Ruto and former radio journalist Joshua Arap Sang thus face three counts of crimes against humanity for their alleged role in the violence that shook Kenya following the 2007 Presidential poll. Their trial began on Tuesday 10th of September, and will run until October 4th. It will resume on October 14th and adjourn on November 1st to make way for the second Kenya case, scheduled to begin on November 12th in which the newly elected President Uhuru Kenyatta faces five counts of crimes against humanity for his alleged responsibility as indirect co-perpetrator in the violence that nearly tore apart Kenya in 2008.[8]
Application for inadmissibility
On the 31st of March 2011, before the confirmation of charges took place, the Government of the Republic of Kenya submitted an application to the ICC pursuant to article 19 of the Rome Statute, requesting the Pre Trial Chamber to determine both of the cases as inadmissible before the ICC. The Government was clear in its desire to have cases such as the present one tried in Kenya, thus reaffirming their ability and willingness for investigation and persecution. They were arguing that the adoption of the new Constitution in 2010, which remedies past deficiencies and weaknesses in the dispensation of the administration of justice, as well as recent associated reforms have opened the way for Kenya to conduct its own prosecutions for the post-election violence in respect of persons at the highest levels of authority and for the most serious crimes. In its application, the Government emphasizes that the recent initiatives have been designed and adopted to cure the shortcomings of the past, and that by approving the application both the ICC and Kenya will uphold the cornerstone principle of the ICC – that of the ICC's jurisdiction being complementary to national criminal jurisdiction.[9] In its application, Kenya sets out the key reforms that have been undertaken, the investigative processes that are currently underway and a proposed timetable.
The Pre Trial Chamber II carefully examined the application, its 22 annexes, and the observations received from the parties and participants, concluding that it is unclear how the Chamber could be convinced that there are actually ongoing investigations by the State within the meaning of article 17(1)(a) of the Statute. The factual information available and the arguments set forth actually demonstrate that there are no concrete steps that can prove these statements. The Government in Kenya is actually contradicting itself when stating in the application that progress reports will be given regarding prospective investigations, and how these will extend up to the highest levels of hierarchy – be it the three suspects subject to the ICC's proceedings. This contradicts the argument presented by the Government in its reply; that there are actually ongoing investigations in relation to the three suspects.[10] Furthermore, the application relies mainly on laying out the judicial reforms and promises for future investigations without presenting any concrete evidence of such steps. Also, after a careful examination of the annexes, it shows that out of the 29 documents attached; only 3 of them appear to be of some direct relevance to the investigative process. They also fall short of any concrete investigative steps regarding the three suspects in question.[11] The Chamber concluded that there remained a situation of inactivity, determining the case as admissible following a plain reading of the first article 17(1)(a) of the Statute. It followed that there was no need to delve into an examination of unwillingness or inability of the State in accordance with article 17(2) and (3).[12] The Chambers decision was upheld on appeal.
[1] OHCHR Fact-finding Mission to Kenya, 6-28 Feburary 2008, p. 5
[2] BBC News, 28 February 2008: http://news.bbc.co.uk/2/hi/africa/7268903.stm
[3] OHCHR Fact-finding Mission to Kenya, 6-28 Feburary 2008, p. 5
[4] Situation in the Republic of Kenya ICC-01/09 31 March 2010, p. 70/83
[5] ICC-01/09-01/11, p. 3/12
[6] ICC Case Information Sheet: ICC-PIDS-CIS-KEN-02-008/13
[7] Case Information Fact Sheet: ICC-PIDS-KEN-01-012/13 and ICC-PIDS-KEN-01-008/13
[8] Landmark Trial at the ICC Set to Begin Tuesday, Kenya Monitor, 9 september 2013, available at: http://www.icckenya.org/2013/09/first-trial-at-the-icc-of-a-sitting-deputy-president-set-to-begin-tuesday
[9] Admissibility Challenge ICC-01/09-01/11-19 and ICC-01/09-02/11, p. 3-5/30
[10] Decision on the Application ICC-01/09-01/1-1011, p.24-25/29
[11] Decision on the Application ICC-01/09-01/11-101, p.25/29
[12] Decision on Application ICC-01/09-01/11-101, p. 28
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