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> Cases & Situations > Kenya

The situation in Kenya is the International Criminal Court’s (ICC) fifth investigation. On 31 March 2010, ICC Pre-Trial Chamber (PTC) II authorized the ICC prosecutor to open an investigation into crimes against humanity allegedly committed in Kenya in relation to the post-election violence of 2007-2008. It was the first time that the prosecutor used his “propriu motu” powers to initiate an investigation without first having received a referral from a states party or the United Nations Security Council (UNSC).

Cases against William Ruto, Joshua Sang, Francis Muthaura and Uhuru Kenyatta

Confirmation of Charges
On 8 March 2011, PTC II issued summonses to appear for Ruto, Kosgey and Sang, as well as for Muthaura, Kenyatta and Ali, in relation to their alleged roles in the 2007-2008 Kenyan post-election violence, and they made their initial appearance before the ICC on 7 and 8 April 2011 respectively.

The judges declined to confirm charges against Henry Kiprono Kosgey and Mohammed Hussein Ali. The confirmation of charges decisions were made by a majority of the cham¬ber, with Judge Hans-Peter Kaul dissenting. Decisions are pending on appeals on the admissibility of the cases filed by the suspects. The prosecutor is not precluded from re-requesting the confirmation of charges against Kosgey and Ali if these requests are supported by additional evidence.

On 23 January 2012, PTC II decided to move cases against William Samoei Ruto and Joshua Arap Sang, and Francis Muthaura and Uhuru Muigai Kenyatta to trial for crimes against humanity allegedly committed during post-election violence in Kenya in 2007-2008.

On 9 March 2012, PTC II rejected the applications of Ruto, Sang, Muthaura and Kenyatta for leave to appeal the decisions to send their cases to trial. On 24 May, the Appeals Chamber unanimously rejected appeals made by the four suspects regarding the challenges to the ICC’s jurisdiction over the Kenya situation.

On 29 March 2012, Trial Chamber V (TC V) was constituted to conduct the upcoming trials.

On 11 and 12 June 2012, hearings took place before TC V in the cases against William Ruto, Joshua Sang, Uhuru Kenyatta and Francis Muthaura to discuss setting a date and other practicalities for their upcoming trials.

On 9 July 2012, TC V set the dates for the commencement of the trials on 10 and 11 April 2013.

Before the start of the trials, a number of preparatory hearings will be held to deal with issues such as the disclosure of evidence to the defense, participation of victims or the language to be used during the trials. 327 and 233 victims have been admitted to participate in the first and second cases respectively, through their legal representatives and will participate in the trial. Additional victims have a right to apply for participation in the trial.

On 3 October 2012, TC V set up a new procedure for victims’ representation and participation in the two Kenya cases. Only victims who wish to actually appear in court now need to submit a written application, while victims who wish to participate in absentia through a common legal representative will be subject to a much less rigorous registration procedure.

In November 2012, TC V appointed Mr. Fergal Gaynor and Mr Wilfred Nderitu as the common legal representatives for victims in the Muthaura/Kenyatta case and in the Ruto/Sang case respectively.

Muthaura charges withdrawn; Kenyatta elected president; trials postponed
On 11 March 2013, the prosecution gave notice to withdraw all charges against Francis Muthaura due to a lack of evidence.

The trial of Kenyatta—who was elected as Kenyan president on 9 March—was rescheduled to 9 July 2013.

The ICC also postponed the trial of William Ruto and Joshua Sang to 28 May 2013. Originally scheduled to start in April 2013, judges granted the defense requests to postpone the trials to allow them more time to process evidence.

Admissibility
On 31 March 2011 the Kenyan government challenged the admissibility of the cases before the Court pursuant to Article 19 of the Rome Statute, requesting that the two cases be declared inadmissible, and arguing that the adoption of the new Constitution and associated legal reforms have opened the way for Kenya to conduct its own prosecutions for the post-election violence. On 30 May 2011, PTC II rejected the Kenyan government’s challenges to the admissibility of the two cases. On 30 August 2011, the ICC Appeals Chamber confirmed the admissibility of the two cases, rejecting the challenges of the Kenyan government.

Opening of the investigation
On 26 November 2009, the ICC prosecutor sought authorization from PTC II to open an investigation in relation to the crimes allegedly committed during the 2007-2008 post-election violence in Kenya. On 18 February 2010, pre-trial judges requested clarification and additional information from the prosecutor in order to decide whether to open an investigation. On 3 March 2010, the prosecution filed its response to this clarification request. On 31 March 2010, in a majority decision, PTC II held that there was a reasonable basis to proceed with an investigation and that the situation appears to fall within the jurisdiction of the Court.

Background
Kenya ratified the Rome Statute in 2005 and became a state party to the ICC. By becoming a state party, Kenya accepted the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thereby opening the door for the prosecutor’s investigation into acts which are not being investigated and prosecuted by national authorities.

On 16 July 2009, the prosecutor received six boxes containing documents and supporting material compiled by the Waki Commission, an international commission of inquiry established by the government of Kenya to investigate the post-election violence that occurred between December 2007 and February 2008, following the presidential elections. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence.

The prosecutor also received information from Kenyan authorities on witness protection measures and on the status of legal proceedings carried out by national authorities. So far, national attempts at addressing the post-election violence have resulted in the establishment of the Kenyan Truth, Justice and Reconciliation Commission and discussions in the government to use the regular judicial apparatus instead of a specially constituted tribunal. Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, failed to achieve the requisite consensus in parliament, which meant that the Kenyan Government missed the deadline for initiating prosecutions by the end of September 2009, a deadline agreed upon by both the ICC prosecutor and the Kenyan government delegation that visited the ICC on 3 July 2009.

On 3 September 2010 in Nairobi, ICC Registrar Silvana Arbia exchanged letters on the necessary operational and legal framework for the Court to conduct its work in Kenya.

Trial Chamber
On 29 March 2012, the Presidency of the International Criminal Court (ICC) issued a decision on the constitution of Trial Chamber V and referred to it the cases in the situation in Kenya. Trial Chamber V is composed of Judge Christine Van den Wyngaert, Judge Kuniko Ozaki and Judge Chile Eboe-Osuji.