Situation in Kenya

Background

Since Republic of Kenya became a one-party state in 1969, the electoral system has been based on constituencies whose boundaries are congruent with the boundaries of tribal areas.This system created some internal frictions during elections. In particular, the post-election in Kenya from late 2007 into early 2008 were distinguished by brutal violence that took place between the opposing parties. 

The crisis began when President Mwai Kibaki was declared the winner of the presidential election held on 27 December 2007. Supporters of Kibaki's opponent, Raila Odinga, of the Orange Democratic Movement, suspected electoral manipulation (this was broadly confirmed by international observers). Former UN Secretary General Kofi Annan, who was the chief mediator in the peace talks, arrived in the country nearly a month after the election, and successfully brought the two sides to the negotiating table. On 28 February 2008, Kibaki and Odinga signed a power-sharing agreement called the National Accord and Reconciliation Act, which establishes the office of Prime Minister and creates a coalition government with Kibaki as President of the Republic. The Cabinet, headed by Odinga as prime Minister, was sworn in on April 17.

The post-election violence of 2007-2008 were characterised in particular by crimes of murder, rape and other forms of sexual violence, deportation or forcible transfer of the population and other inhumane acts. During the 30 days of violence more than 1,220 people were killed, 3,500 injured and 350,000 displaced, as well as hundreds of rapes and the destruction of over 100,000 properties.

Kenya was set to establish  its own tribunal at the national level to prosecute those who responsible for the violence. However the government failed to meet a 30 September deadline to establish a local tribunal.

Kenya has been a State Party to the Rome Statute since 1 March 2005, which allows the ICC to have jurisdiction over Kenyans criminals and crimes in his territory. According to Rome Statute State Parties are obligated to co-operate fully with the Court in investigations and prosecutions of crimes within its jurisdiction.

 

Timeline

On 5 November 2009, the Prosecutor of International Criminal Court (ICC), Luis Moreno-Ocampo, notified the President of the Court of his intention to submit a request for the authorisation of an investigation into the situation in Kenya pursuant to article 15(3) of the Rome Statute, about the post-election violence in Kenya in 2007-2008 in which around 1300 people were killed.

On 6 November 2009, the Presidency of the Court assigned the situation to Pre-Trial Chamber II, composed of Judge Ekaterina Trendafilova (presiding judge), Judge Hans-Peter Kaul and Judge Cuno Tarfusser.

On 3 March 2010, ICC Prosecutor Luis Moreno-Ocampo provided Judges at the ICC with a list of 20 names of persons alleged to bear the gravest responsibility for the post-election violence. Among the names there are senior Kenyan politicians and businessmen accused of organising and financing ethnic attacks.

On 31 March 2010 Pre-Trial Chamber II of the ICC granted a prosecution request to open an investigation into alleged Crimes against humanity in Kenya. In its decision, the majority stated that there is a reasonable basis to believe that crimes against humanity have been committed on the territory of Kenya. The Court also held that jurisdictional requirements had been satisfied, and the threshold for opening an investigation had been met.

The investigation covered crimes against humanity committed between 1 June 2002 (the date of the Statute’s entry into force for Kenya) and 26 November 2009 (the date of the filing of the Prosecutor’s Request).

On 15 December 2010, the Prosecutor of the ICC requested Pre-Trial Chamber II of the ICC to issue summonses to appear for six prominent Kenyans on the basis that there existed reasonable grounds to believe that they were criminally responsible for crimes against humanity, pursuant to article 7 of the Rome Statute.

The men were: Uhuru Kenyatta, Deputy Prime Minister and son of Jomo Kenyatta, Cabinet Secretary Francis Muthaura, President of the National Security Committee, former Police Chief Hussein Ali, former education minister William Ruto (currently suspended because of corruption accusations), ethnic radio journalist Joshua Arap Sang and opposition leader and minister for Industrialisation, Henry Kosgey.

On 8 March 2011 ICC Pre-Trial Chamber II issued summonses to appear against the six men.

On 7 April 2011, Ruto, Kosgey and Sang made their initial appearance at the ICC. The Confirmation of Charges hearing was scheduled for 1 September 2011.

On 8 April 2011, Kenyatta, Ali and Muthaura made their initial appearance at the ICC. The Confirmation of Charges hearing was scheduled for 21 September 2011.

 

Trials

Mr Moreno-Ocampo filed two separate cases, with different charges and it is therefore envisaged that two separate trials be organised.

 

 - Prosecutor vs. Uhuru Kenyatta, Hussein Ali, and Francis Muthaura.

The first trial would involve three officials of the then government: Uhuru Kenyatta, Hussein Ali, and Francis Muthaura.

The prosecution alleges that Muthaura, Kenyatta and Ali "committed or contributed to" the killings of supporters of the opposition Orange Democratic Movement, the deportation or forcible transfer of ODM supporters, the rape and other forms of sexual violence against ODM supporters, the persecution of civilians based on their political affiliation and other inhumane acts.

The Pre-Trial Chamber said that evidence presented to the Court showed that prior to the attacks in the cities of Nakuru and Naivasha in January 2008, planning meetings were held.

The Chamber found reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators (committed crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts.

The Chamber did not, however, find reasonable grounds to believe that Ali was an indirect co-perpetrator, as his contribution to the commission of the crimes was not essential, but that he did otherwise contribute to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

The first appearance of the three men took place on Friday 8 April 2011 and the Confirmation of Charges hearing is scheduled for 21 September 2011.

 

 - Prosecutor vs. William Ruto, Henry Kosgey and Joshua Arap Sang.

The second trial would involve leaders of the main opposition party, the Orange Democratic Movement (ODM): William Ruto, Henry Kosgey, and Joshua Arap Sang. According to the prosecution, the three men planned the post-election violence in the Rift Valley, in Turbo town, the greater Eldoret area, Kapsabet town and Nandi Hills town.

The crimes, according to the prosecution, "were committed by large and organised gangs of Kalenjin youth against members of the civilian population, as part of a widespread and systematic attack" due to the local population's affiliation with the Party of National Unity. Mr Ocampo alleges that Ruto, Kosgey and Sang established a network of ODM representatives, members of the media, former Kenyan police and army forces and local leaders to help carry out the plan.

The Pre-Trial Chamber found reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution. The majority view was that there were “reasonable grounds to believe that the network was under responsible command and had an established hierarchy, with Ruto as leader, Kosgey as deputy leader and treasurer and Sang as responsible for communicative purposes”.

Similarly to the findings against Ali, the Chamber did not believe that Sang was an indirect co-perpetrator, but that he did contribute to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute The Chamber did not find grounds to believe that acts of torture were committed.

The first appearance of the three men took place on Thursday 7 April 2011 and the Confirmation of Charges hearing is scheduled for 1 September 2011.

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