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Kenya: Latest Statements and News upon Opening of Key Hearing into Post-Election Violence

01 Sept 2011

Dear all,

Please find below information about recent developments related to the
International Criminal Court's (ICC) investigation in Kenya.

This message includes the latest media statements from members of the Coalition
for the International Criminal Court (I) ICC statements (II) and related news
and opinion (III).

Please take note of the Coalition's policy on situations before the ICC (below),
which explicitly states that the CICC will not take a position on potential and
current situations before the Court or situations under analysis. The Coalition,
however, will continue to provide the most up-to-date information about the ICC.

With regards,
CICC Secretariat
www.coalitionfortheicc.org

**********************************************

I. COALITION MEDIA STATEMENTS

1. "Key ICC Hearing into Kenya Post-Election Violence to Open: Judges to
Consider Charges of Crimes Against Humanity for Ruto, Kosgey and Sang,"
Coalition for the International Criminal Court Media Advisory, 1 September 2011,
http://www.iccnow.org/documents/CICC_Media_Advisory_Kenya_1_010911.pdf

"WHAT: Today, 1 September 2011, Pre-Trial Chamber II (PTC II) of the
International Criminal Court (ICC) will open a key hearing in the case against
William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang for their alleged
role in crimes against humanity committed during post-election violence in
2007-2008 in Kenya. The purpose of the confirmation of charges hearing is for
judges of PTC II to determine whether the case against the three suspects can be
sent to trial. The confirmation of charges hearing in the case against Francis
Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali is to begin on 21
September 2011.

WHO: Ruto, a suspended government minister and deputy party leader of the Orange
Democratic Movement (ODM), and Kosgey, a current member of parliament and
chairman of the ODM, are suspected of being indirect co-perpetrators in the
commission of the crimes against humanity of murder, forcible transfer of
population and persecution during post-election violence in Kenya in 2007-2008.
Sang, the head of operations at a radio station in Nairobi, is suspected of
having 'otherwise contributed' to the commission of the abovementioned crimes.

HOW: During the hearing, the ICC prosecutor is required to support his charges
with sufficient evidence. The suspects will have the opportunity to object to
the charges and challenge evidence through their respective defence counsels.
Each suspect is allowed to call a maximum of two witnesses for their defence.
The views and concerns of 327 victims are to be presented during the proceedings
through their legal representatives. The chamber is expected to take a decision
within 60 days of the hearing's closing. The judges of PTC II can confirm the
charges and send the case to trial; reject the charges, or request the
prosecutor for additional information. PTC II is composed of judges Ekaterina
Trendafilova, Hans-Peter Kaul and Cuno Tarfusser.

COMMENT: "These hearings, irrespective of whether the judges decide to send the
case to trial, illustrate how international justice is entrenching
accountability and justice for victims of the most serious crimes," said William
R. Pace, convenor of the Coalition. "The Rome Statute guarantees these suspects
rights such as the presumption of innocence and the right to fair and
independent proceedings," he stated. "It is crucial that the Court take steps to
dispel the idea prevalent in certain sections of Kenyan society that the
suspects are being unjustly targeted by the Court," Pace said. "To this end, it
is vital that the ICC is given sufficient resources to provide reliable factual
information about its activities and manner of working."

"The confirmation hearings constitute a first in the struggle against a culture
of impunity in Kenya, most recently related to electoral violence, which has
detrimentally undermined respect for the rule of law and brought victims to
despair," said Atsango Chesoni, executive director of the Kenya Human Rights
Commission. "Never have such high-level alleged perpetrators faced the prospect
of trial," he stated. "The importance of the ICC processes in restoring the
faith of the Kenyan people in the possibility of justice cannot be overstated.
They need to see and understand that it is possible to hold people to account
while respecting the human rights of both victims and suspects," explained
Chesoni. "At the same time, given the grim legacy for whistleblowers in Kenya,
there is an urgent need to strengthen witness protection mechanisms in order to
address lingering fears about participation in the justice process."

BACKGROUND: The ICC prosecutor's investigation into crimes against humanity
allegedly committed in Kenya during the 2007-2008 post-election violence was
authorized by judges of PTC II on 31 March 2010, following a request by the ICC
prosecutor on 26 November 2009. It was the first time the prosecutor initiated
an investigation on his own accord ("propio motu"), without first having
received a referral from governments or by the United Nations Security Council.
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. On 30 August 2011,
the ICC Appeals Chamber confirmed the admissibility of the two cases in the
Kenya situation, rejecting the challenges of the Kenyan government."

2. "ICC: Pretrial Hearing for First Kenya Case," Human Rights Watch Media
Advisory , 30 August 2011
http://www.hrw.org/news/2011/08/30/kenya-pre-trial-hearing-begins-first-icc-case

" (Brussels, August 30, 2011) - A "confirmation of charges" hearing, to
determine whether the first case in the Kenya situation at the International
Criminal Court (ICC) should be sent to trial, will begin before an ICC pretrial
chamber in The Hague on September 1, 2011. The hearing is expected to conclude
by September 12.

In the first Kenya case, the ICC prosecutor has accused William Samoei Ruto,
Henry Kiprono Kosgey, and Joshua arap Sang of committing crimes against humanity
during Kenya's 2007-2008 post-election violence. A confirmation of charges
hearing in the second Kenya case, which involves charges of crimes against
humanity also allegedly committed during the post-election violence against
Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammad Hussein Ali, is
expected to begin on September 22.

Ruto and Kosgey are senior members of the then-opposition party Orange
Democratic Movement (ODM) as well as members of parliament and former cabinet
ministers. Sang was a radio host at the time of the violence. They are accused
of violence toward supporters of the president's party, while those charged in
the second case are accused of violence against backers of the ODM.

"The April appearance of Ruto and his co-defendants in the dock at the ICC was
an extraordinary moment, the first time many Kenyans had seen their political
leaders called to account," said Elizabeth Evenson, senior international justice
counsel at Human Rights Watch. "This hearing is another step toward ending
impunity for Kenya's election-related violence."

The hearing is not a trial and will not determine the guilt of Ruto, Kosgey, or
Sang. Instead, the limited purpose is to allow the judges to evaluate whether
the prosecutor has enough evidence to move ahead with a trial. The defendants
will have the opportunity to object to the charges, challenge the prosecutor's
evidence, and present their own evidence. The defendants have indicated that
they each intend to call witnesses.

Under the court's innovative system allowing for victim participation, 327
victims have been authorized to participate in the hearing through a common
legal representative. On behalf of these victims, the legal representative may
make open and closing statements, and may also seek the court's permission to
question witnesses and provide written submissions.

The Kenya investigation - the ICC's fifth - was opened in March 2010 after the
prosecutor received authorization from the court. The ICC prosecutor's
investigations have focused on the violence in Kenya that followed what was
widely perceived as a rigged presidential election in favor of the incumbent,
Mwai Kibaki, in December 2007.

To read a Questions and Answers document on the confirmation of charges hearing,
please visit: http://www.hrw.org/node/101371

To read the Human Rights Watch report, "Ballots to Bullets: Organized Political
Violence and Kenya's Crisis of Governance," please visit:
http://www.hrw.org/reports/2008/03/16/ballots-bullets

For more Human Rights Watch reporting on Kenya, please visit:
http://www.hrw.org/en/africa/kenya

For more Human Rights Watch reporting on the ICC, please visit:
http://www.hrw.org/en/category/topic/international-justice/international-crimina
l-court"

3. "International Justice Needs Local Hearings," by Michael Gibb and Alison
Smith, No Peace Without Justice, Huffington Post, 1 September 2011,
http://www.huffingtonpost.co.uk/michael-gibb/international-justice-needs_b_94378
5.html

"Today the International Criminal Court begins its first hearings to confirm
charges against three of the six men accused of orchestrating the violence that
followed Kenya's 2007 Presidential Elections, leaving over 1,000 dead and over
350,000 displaced. We interviewed many of the displaced during the spring of
2008 while working with Kenyan rights groups determined to confront a political
culture prone to violence with justice through genuine accountability.

The ICC is a relatively new but potentially powerful instrument for holding
those responsible for the most serious crimes to account, and these trials
therefore represent an important step in Kenya's reconciliation process and
towards ending the cycles of impunity that have blighted the country's recent
political history.

The ICC must not forget, however, that its mission depends crucially on its
ability to deliver a sense of justice and accountability to the victims of the
crimes it investigates and prosecutes. Victims are the primary constituents of
the Court's work. These are the communities that must have their faith in the
rule of law restored through a clear sense that justice has been done and that
any rewards for violence have been reclaimed, lest their grievances be allowed
to slowly erode the prospects for a sustainable peace.

One of the most effective means of ensuring that victims are engaged in the
justice process is by ensuring that trials are held in or near their communities
where possible. This is an unquestioned assumption in most domestic criminal
cases, and the stated preference of many victims' groups. How can victims be
expected to engage fully in a judicial process when it is conducted thousands of
miles away?

The Rome Statute, the ICC's founding document, clearly recognises the importance
of administering justice locally through the so-called "principle of
complementarity," which limits the Court's jurisdiction to case where the State
itself is unwilling or unable to conduct trials of its own. While the ICC sits
in The Hague, the statute therefore clearly allows it to convene elsewhere,
particularly where this will help bring justice closer to victims. A recent
review conference convened to discuss the Court's progress over its first ten
years also reaffirmed the centrality of victims to its work, and stressed that
the Court needs to dramatically strengthen its presence in situation countries,
as well as other aspects of its outreach programme.

Regrettably, and despite numerous proposals to hold some or all of its
proceedings in Kenya, hearings have today started in The Hague. This is a
decision is consistent with the Court's continued reluctance to conduct trials
in countries where the relevant crimes have been committed.

There are, of course, circumstances that might make such local hearings
impossible. The primary concern of any investigations and trials must be the
wellbeing of witnesses and victims, including their physical and psychological
welfare. The reality of many of the post-conflict societies in which the Court
operates is unfortunately such that this cannot be guaranteed.

There is, however, little to suggest that the Court has conducted a
comprehensive analysis of the current security situation in Kenya. The
Prosecutor himself has noted that "no security assessment has been conducted
that permits the Chamber to determine that conducting the proceedings on site
will be in accordance with the Rome Statute's security requirements."
Furthermore, little thought appears to have been given to whether the relevant
security concerns could be mitigated or managed in a way that would make it
possible to conduct some proceedings in affected communities. Nor, if its
security concerns are indeed well founded, does the Court appear to have
seriously considered conducting some of its hearings in neighboring Tanzania,
which already hosts the international criminal tribunal tasked with prosecuting
those responsible for the genocide in Rwanda.

Breaking cycles of impunity that reward violence and undermine trust in the rule
and institutions of law is an ongoing project. The ICC has an important role to
play in this project, but to succeed it must do more to engage victims in its
work from the very onset of its investigations and throughout its trials.
Advocacy groups such as No Peace Without Justice are now working to ensure that
the Court's decision does not set a precedent that presumes against conducting
trials in affected communities in the future, and to encourage the ICC to
strengthen its protection and support mechanisms victims and witnesses. This is
crucial not only to ensuring the Court lives up to its potential in Kenya, but
to the long-term project of building sustainable peace through universal
international criminal justice."

4. "ICC complementarity not an alibi for impunity," No Peace Without Justice
Press Release, 30 August 2011
http://www.npwj.org/ICC/ICC-complementarity-not-alibi-impunity.html-1

"Today, Tuesday 30 August 2011, the Appeals Chamber of the International
Criminal Court (ICC) has confirmed the decision of Pre-Trial Chamber II and
therefore the admissibility in the two cases1 relating to crimes against
humanity allegedly committed in Kenya during the post-election violence from
December 2007 (Post-Election Violence). On 31 March 2011, the Kenyan Government
had challenged the admissibility of the two cases, invoking the ICC founding
principle of complementarity, whereby the ICC only has jurisdiction when a State
is "unable or unwilling" to investigate and prosecute crimes under its
jurisdiction. Statement by Alison Smith, Legal Counsel of No Peace Without
Justice: "No Peace Without Justice (NPWJ) and the Nonviolent Radical Party,
Transnational and Transparty (NRPTT) welcome today's decision of the Appeals
Chamber, which recognised that the Kenyan authorities have not shown to be
willing or able to provide effective redress for the victims of Post- Election
Violence in Kenya."

"Standing as the ultimate guardian of justice, the ICC only acts when the
competent State does not genuinely investigate and prosecute the most serious
crimes of concern to the international community within its national
jurisdiction. In line with the principle of complementarity on which the ICC is
based, it is the primary responsibility of States to investigate and prosecute
the crimes under the jurisdiction of the Court. However, the Appeals Chamber
confirmed the Pre-Trial Chamber II finding that the Kenyan Government
applications do not provide concrete evidence of ongoing investigations or
proceedings before national judges against the same persons for the crimes
alleged."

"Unless and until the Kenyan Government can show that they are willing and able
to deal with the Post Election Violence cases nationally, the ICC remains the
only opportunity for the victims of the crimes committed during the
Post-Election Violence to seek redress and justice. The Kenyan Government has
failed to take a clear and firm stance against politically motivated violence,
particularly when it involves powerful political actors. The -ICC's involvement
is therefore of the utmost importance for Kenya to break the cycle of impunity,
to send a loud and unequivocal message that politically-motivated mass crimes
will not be tolerated or rewarded and to prevent future violence before the next
elections in 2012."

"Now that the cases are going ahead, the ICC must intensify its efforts to reach
out to the people of Kenya, particularly since the confirmation of charges
hearings will take place in The Hague on 1
September 2011 in the Ruto et al case and on 21 September 2011 in the Muthaura
et al case. There is an urgent need to engage directly with those affected by
the violence in order to promote understanding of the Court and manage
expectations. NPWJ and the NRPTT urge States to engage with the ICC to intensify
its outreach in Kenya and to ensure the ICC has sufficient resources to carry
out this essential work, which is critical for the ICC to reach its
constituencies, maximise its impact and ensure a positive and lasting legacy in
Kenya."

For further information, please contact Alison Smith, phone +32 2 548 39 12,
email [email protected] or Nicola Giovannini, phone +32-2-548-3915, email
[email protected]"

II. ICC STATEMENTS

1. "Situation in Kenya: Appeals Chamber confirms the admissibility of the
cases," ICC Press Release, ICC-CPI-20110830-PR716, 30 August 2011
http://www.icc-cpi.int/menus/icc/press and media/press releases/pr716

"Today, 30 August 2011, the Appeals Chamber of the International Criminal Court
(ICC) confirmed Pre-Trial Chamber II's decisions of 30 May 2011 on the
admissibility of the cases The Prosecutor v. William Samoei Ruto, Henry Kiprono
Kosgey and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura, Uhuru
Muigai Kenyatta and Mohammed Hussein Ali (the decisions are available here and
here) and dismissed the appeals filed by the Government of Kenya.

Judge Daniel David Ntanda Nsereko, the presiding judge for these appeals,
delivered a summary of the judgments in open session. The judge indicated that
no legal, factual or procedural error could be discerned in the Pre-Trial
Chamber's decisions of 30 May 2011. He explained that, for the cases to be
inadmissible, a national investigation must be ongoing and must cover the same
individuals and substantially the same conduct as alleged in the proceedings
before the ICC. Furthermore, the Appeals Chamber considered that the Pre-Trial
Chamber made no error when it found that the Government of Kenya had failed to
provide sufficient evidence to substantiate that it was investigating the six
suspects for the crimes alleged in the summonses to appear issued for them.

The judgments were adopted by majority, with Judge Anita U¹acka dissenting. The
dissenting opinion will be filed in due course."

2. "Nairobi: ICC legal representative consults with Kenyan victims on identity
disclosure and clarifies distinction between victims and witnesses"
ICC-CPI-20110830-PR715, Press Release, 30 August 2011
http://www.icc-cpi.int/menus/icc/press and media/press releases/pr715

"From 22 to 24 August 2011, a Court-appointed legal representative of victims,
Ms Sureta Chana, held consultations in Nairobi, Kenya, with approximately 100 of
the 327 victims authorised to participate in the proceedings in the case The
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joseph Arap Sang
before the International Criminal Court (ICC). Items discussed included
permission to disclose victims' identities to case parties, the reasons behind
the new appointment of a common legal representative and the victims' concerns
for their personal safety.

In line with a Pre-Trial Chamber II order, Ms Chana led the consultations with
assistance from the Victims Participation and Reparations Section (VPRS) of the
ICC Registry, and organised it in conjunction with civil society organisations
in Kenya.

The consultations were held primarily to confirm whether or not the victims
consented to having their identities disclosed to the Defence or the public. Ms
Chana also noted that non-disclosure of the victims' identities will not be
detrimental to the rights of the Defence, as the victims will not seek to lead
evidence or testify during the upcoming confirmation of charges hearing. On the
other hand, maintaining confidentiality will reassure victims of their security
during and after the confirmation of charges hearing.

As Ms Chana recently replaced a number of former legal representatives of the
victims, the meetings were also an occasion for VPRS to explain to the victims
the reasons for this change, and to explain the process by which she was
appointed. Ms Chana expressed her gratitude to the intermediaries as well as the
lawyers who had been working with the victims of the post-election violence in
order to enable the victims to exercise their rights before the ICC.

During the meetings, the victims expressed concerns about their personal safety,
reporting instances of threats or coercion from within their communities, since
they have been wrongly perceived as witnesses rather than victims. In response,
the Court is providing protection as necessary to the victims and witnesses. Ms
Chana concluded the meetings by promising to raise the views and concerns of the
victims before the Court and to "keep the Chamber appraised of the constantly
evolving security situation surrounding [her] clients".

A victim participating in ICC proceedings is a person who has suffered harm as a
result of a commission of a crime within the jurisdiction of the Court. A
witness testifies before the Court, either on behalf of the Prosecution or
Defence. Victims have no obligation to testify. Victims' participation allows
them to express a position independent from both the Prosecution and the Defence
and to express their own concerns and views, allowing for their voices to be
heard in the courtroom. Victims' participation is among the most important
innovations of the Rome Statute of the ICC. At present, 327 victims have been
authorised by Pre-Trial Chamber II to participate in the proceedings in the case
against Ruto, Kosgey and Sang. The confirmation of charges hearing in this case
is scheduled to start on 1 September 2011."

III. RELATED NEWS AND OPINION

1. "Kenyans in Hague court over election violence," Liz Ford, The Guardian, 1
September 2011
http://www.guardian.co.uk/global-development/2011/sep/01/icc-kenya-election-viol
ence

2. "Ruto told to stay in The Hague" by Nzau Musau, Nairobi Star, 31 August
2011,
http://www.nairobistar.com/national/national/38334-ruto-ordered-by-court-to-stay
-in-the-hague

3. "Kenya: Ruto Says Chaos Case Based On Lies"by Dave Opiyo, The Nation, 30
August 2011
http://allafrica.com/stories/201108300960.html

4. "Appeals Chamber dismisses Kenya appeal to have ICC cases stopped" by Tom
Maliti, Kenya Trial Monitor, 30 August 2011
http://www.icckenya.org/2011/08/appeals-chamber-dismisses-kenya-appeal-to-have-i
cc-cases-stopped/

5. "What about the others? What to think when ICC hearings implicate
"non-suspects"" ICC Kenya Monitor, 29 August 2011
http://www.icckenya.org/2011/08/what-about-the-others-what-to-think-when-icc-hea
rings-implicate-“non-suspects”/

6. "Victims may seek more charges against Ruto, Kosgey, and Sang" by Tom Maliti,
ICC Trial Blog, 29 August 2011
http://www.icckenya.org/2011/08/victims-may-seek-more-charges-against-ruto-kosge
y-and-sang/

7. "Muthaura lawyers file protest at ICC" by Emeka-mayaka Gekara, The Nation, 27
August 2011
http://www.nation.co.ke/News/politics/Muthaura+lawyers+file+protest+at+ICC+/-/10
64/1226600/-/3jibuhz/-/

8. "Kenya: Muthaura Furious With Ocampo"by Solomon Kirimi, Nairobi Star, 28
August 2011
http://allafrica.com/stories/201108290319.html

9. "Kenya ex-minister: confident ICC will drop charges" Reuters, 28 August 2011
http://af.reuters.com/article/topNews/idAFJOE77R00920110828

10. "Why President's men are wary of ICC case" by Emeka-Mayaka Gekara, Daily
Nation, 27 August 2011,
http://www.nation.co.ke/News/politics/Why+Presidents+men+are+wary+of+ICC+case+/-
/1064/1226562/-/15a70dkz/-/

11. "10 ministers named on new impunity list" by Henry Wanyama, Nairobi Star, 25
August 2011
http://www.nairobistar.com/national/national/37587-10-ministers-named-on-new-imp
unity-list

12. "'Ocampo three' responsible for attacks in Nakuru and Naivasha"by Evelyn
Kwamboka, The Standard, 25 August 2011
http://www.standardmedia.co.ke/InsidePage.php?id=2000041550&cid=4&ttl=

14. "Ocampo seeks to be allocates 15 of 40 hours at confirmation" by Evelyn
Kwamboka, The Standard, 25 August 2011
http://www.standardmedia.co.ke/InsidePage.php?id=2000041535&cid=4&ttl=Ocampo s
eeks to be allocates 15 of 40 hours at confirmation

15. "Disclosure: The prosecutor revises his case against Muthaura, Kenyatta, and
Ali" by Tom Maliti, ICC Kenya Trial Monitor, 24 August 2011
http://www.icckenya.org/2011/08/disclosure-the-prosecutor-revises-his-case-again
st-muthaura-kenyatta-and-ali/"

16. "William Ruto, accused by ICC, sacked as Kenyan minister" BBC News, 24
August 2011
http://www.bbc.co.uk/news/world-africa-14655429

17. "Victims want identity kept secret at ICC" by Judie Kaberia, Capital News
FM, 24 August 2011
http://www.capitalfm.co.ke/news/2011/08/24/victims-want-identity-kept-secret-at-
icc/

18. "Kenya: Uhuru, Ruto in 2012 Race Even If ICC Proceeds" by Francis Mureithi,
Nairobi Star
24 August 2011
http://allafrica.com/stories/201108250231.html

19. "Ruto, Sang challenge ICC jurisdiction" by Judy Kaberia, Capital FM, 23
August 2011
http://www.capitalfm.co.ke/news/2011/08/23/ruto-sang-challenge-icc-jurisdiction/

20. "Kenya: Poll - Support for ICC Process Drops" by Peter Mwai, The Nation, 19
August 2011 http://allafrica.com/stories/201108191567.html

21. "Kenya: ICC issues deadline to defence teams"by Hallygan Agade, KBC, 19
August 2011
http://www.kbc.co.ke/news.asp?nid=72021

22. "Ocampo: Mungiki attacks planned at State House" by Bernard Momanyi, Capital
FM News, 19 August 2011
http://www.capitalfm.co.ke/news/2011/08/19/ocampo-mungiki-attacks-planned-at-sta
te-house/


************************************************
CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an
independent NGO movement dedicated to the establishment of the International
Criminal Court as a fair, effective, and independent international organization.
The Coalition will continue to provide the most up-to-date information about the
ICC and to help coordinate global action to effectively implement the Rome
Statute of the ICC. The Coalition will also endeavor to respond to basic queries
and to raise awareness about the ICC's trigger mechanisms and procedures, as
they develop. The Coalition as a whole, and its secretariat, do not endorse or
promote specific investigations or prosecutions or take a position on situations
before the ICC. However, individual CICC members may endorse referrals, provide
legal and other support on investigations, or develop partnerships with local
and other organizations in the course of their efforts. Communications to the
ICC can be sent to: ICC P.O. box 19519 2500 CM the Hague The Netherlands