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Kenya: Latest Statements, Reports and News
09 Nov 2011
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Please find below information about recent developments related to the International Criminal Court's (ICC) investigation in Kenya. This message includes the latest documents from the ICC (I), statements from members of the Coalition for the International Criminal Court (II), articles quoting Coalition members (III),a report of the Kenya National Dialogue and Reconciliation Monitoring Project (IV), related news and opinions (V), and audiovisual resources (VI). 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<http://www.coalitionfortheicc.org/> ********************************************** I. ICC DOCUMENTS 1. “Pre-Trial Chamber II will issue its decisions confirming or declining to confirm the charges in both Kenyan cases on the same date,” ICC Press Release, ICC-CPI-20111026-PR737, 26 October 2011, http://www.icc-cpi.int/menus/icc/press and media/press releases/pr737 “Today, Pre-Trial Chamber II decided that the decision to confirm or decline to confirm the charges in the case of The Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang will be issued on the same date as the decision in the case of The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. The confirmation of charges hearings in these two cases were held from 1 to 8 September 2011 and from 21 September to 5 October 2011, respectively. The Chamber, duty-bound by law to protect the safety and well-being of witnesses and victims throughout the proceedings, took this decision mindful of the many security concerns raised by the victims in both cases. Those concerns were also supported by regular reports received by the Chamber on the security situation in the Republic of Kenya. In its decision, the Chamber also reiterated its appeal previously made to all concerned and citizens of the Republic of Kenya to respect the life, security and property of victims and witnesses and to refrain from engaging in any activities that are likely to trigger or exacerbate tension and violence in the Republic of Kenya. Background information The Republic of Kenya ratified the Rome Statute on 15 March, 2005 becoming a State Party on 1st June 2005. According to the Rome Statute, the Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. On 31 March 2010, Pre-Trial Chamber II authorized the Prosecutor to commence an investigation proprio motu in the situation in the Republic of Kenya in relation to the 2007/2008 post-election violence.” 2. “Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber II dated 20 July 2011 entitled "Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence," ICC Appeals Chamber, 10 November 2011, http://www.icc-cpi.int/NR/exeres/3ABEC857-B8EF-49DB-AE19-983F5CEEB046.htm On 11 November 2011, the ICC Appeals Chamber issued a decision on the appeal of the prosecutor against the Pre-Trial Chamber (PTC) II ‘Decision With Respect to the Question of Invalidating the Appointment of Counsel to the Defence’ of the 20th July 2011 (hereinafter ‘Impugned Decision’). The appeal concerned the appointment of Mr. Essa Faal to the defence team of ICC suspect Francis Kirimi Muthaura, after he had been employed by the Office of the Prosecutor. The Appeals Chamber stated that the interpretation given by the PTC II of art. 12(1) (b) of the Code of Professional Conduct for counsel had no basis in law and ordered the PTC to reconsider the matter. II. COALITION MEMBER MEDIA STATEMENTS 1. “Kenya: Account for ‘Disappeared’ in Insurgency Crackdown: International Criminal Court Should Expand Investigation to Mt. Elgon Conflict,” Human Right Watch Media Statement, 27 October 2011, http://www.hrw.org/news/2011/10/27/kenya-account-disappeared-insurgency-crackdown “Over 300 people are still missing three years after a conflict over an insurgency in the Mt. Elgon region, the majority of them forcibly disappeared by the Kenyan army, Human Rights Watch said in a report released today. The Kenyan government should immediately establish an independent inquiry to exhume suspected mass graves and to investigate atrocities committed by both Kenyan security forces and the militia known as the Sabaot Land Defense Force (SLDF). The International Criminal Court (ICC) should broaden its investigation in Kenya if the Kenyan government is unable or unwilling to carry out these investigations. The 48-page report, “‘Hold Your Heart’: Waiting for Justice in Kenya’s Mt. Elgon Region,” examines the attempts of families of those forcibly disappeared by the Kenyan army and the SLDF militia to seek truth and justice. In the last three years, the Kenyan government has done little to assist victims in their search, Human Rights Watch said, and has not ensured an independent, impartial inquiry into the abuses by either side. “The plight of the victims’ families is one of the most enduring scars of the violence in Mt. Elgon,” said Daniel Bekele, Africa director at Human Rights Watch. “With no bodies to bury, no death certificates, and no official recognition of the loss of their family members, these families remain in a legal and psychological limbo.” The report is based on field investigations and interviews conducted in Kenya’s Western Province. While many human rights abuses dating to the Mt. Elgon conflict remain unpunished, “Hold Your Heart” focuses on the specific problem of unresolved abductions by SLDF militia and enforced disappearances at the hands of the Kenyan security forces. The primary responsibility to investigate crimes committed in Mt. Elgon lies with the Kenyan authorities. As this report demonstrates, there has been an absence of credible investigations during the last three years for atrocities committed in Mt. Elgon, Human Rights Watch said….” READ THE REPORT: “ ‘Hold Your Heart’ Waiting for Justice in Kenya’s Mt. Elgon Region<http://www.coalitionfortheicc.org/documents/kenya1011_ToUpload.pdf>,” Human Rights Watch report, 27 October 2011, http://www.coalitionfortheicc.org/documents/kenya1011_ToUpload.pdf SEE ALSO: 1. “Kenya: Mt. Elgon Families Seeking Justice,” HRW, 4 November 2011 http://www.hrw.org/news/2011/11/04/kenya-mt-elgon-families-seeking-justice 2. "Unfinished Business, Closing Gaps in the Selection of ICC Cases," Human Rights Watch report, excerpt from Section VI "Kenya", 15 September 2011, http://www.hrw.org/sites/default/files/reports/icc0911webwcover.pdf 3. “UN Working Group to Discuss Violations in Mt Elgon,” by Henry Wanyama, The Star, 7 November 2011, http://allafrica.com/stories/201111080090.html 4. “Groups accuse Kapondi of blocking justice,” by John Nalianya, The Star, 4 November 2011, http://www.the-star.co.ke/local/rift-valley/47724-groups-accuse-kapondi-of-blocking-justice 5. “HRW to Kenya: Account for Missing in Mt. Elgon Crackdown,” Voice of America, 27 October 2011, http://blogs.voanews.com/breaking-news/2011/10/27/hrw-to-kenya-account-for-missing-in-mt-elgon-crackdown/ 6. “Kenya: Ocampo Accused of Letting Police Get Away,” by Nzau Musau, Nairobi Star, 20 October 2011, http://allafrica.com/stories/201110200783.html 7. “Human Rights Watch asks Ocampo to probe Mt Elgon crimes,” by Evelyn Kwamboka, The Standard, 18 October 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000045124&cid=159& III. COALITION MEMBERS QUOTED 1. “ICC in Kenyan Victims Assistance Dilemma - Court under pressure to offer support to victims of election violence, but could risk jeopardising cases against alleged ringleaders if it does so,” by Nzau Musau, IWPR, 26 October 2011, http://iwpr.net/report-news/icc-kenyan-victims-assistance-dilemma “Campaigners are calling on the International Criminal Court, ICC, to assist victims of the post-2007 election violence in Kenya, with experts warning this might prejudice pre-trial proceedings against suspects charged with responsibility for the bloodshed. They also point out that while the ICC has a provision to assist the victims, it is not obliged to do so, while the Kenyan government has a duty to offer support to those who suffered. Approximately 1,100 people were killed and over 3,000 injured during violent uprisings following the contested results of Kenya’s 2007 presidential elections. In the aftermath of the disturbances, former United Nations secretary-general, Kofi Annan, brokered a power-sharing deal between the Orange Democratic Movement, ODM, and the Party of National Unity, PNU in early 2008. The ICC has summoned six leading Kenyan public figures, including the deputy prime minister and the former police commissioner on charges of crimes against humanity for their alleged role in orchestrating the attacks. The court has not yet undertaken any action to help the victims of the unrest, although it does have a mechanism to do so. The Trust Fund for Victims, TFV – set up under the Rome Statute, the treaty that created the ICC – offers support to people who have suffered from crimes being probed by the ICC. “Many of these victims' needs are urgent and cannot wait for commencement of substantive proceedings,” said Christine Alai, acting head of the International Centre for Transitional Justice, ICTJ, in Kenya. “Particularly victims of sexual violence and gunshot wounds are in urgent need of medical and psychological assistance, while many others require material support to be able to rebuild their livelihoods.” …Carla Ferstman, the director of the London-based rights group, REDRESS, says that this reading of the court’s regulations is perhaps what is holding the TFV back from intervening in Kenya. “This is arguably a narrow interpretation [of the court rules governing the TFV], but not a wrong one,” she said. “The trust fund is simply being careful and prudent, because it believes that if it makes a request to the chamber now, before [the confirmation of charges are] settled, then the chamber will reject the request; so it seems the trust fund prefers to wait [until charges have been confirmed or not].”….” IV. THE KENYA NATIONAL DIALOGUE AND RECONCILIATION MONITORING PROJECT 1. “Review report of the KNDR on the progress in implementation of the Constitution and other reforms,” The Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project, South Consulting, October 2011, http://www.coalitionfortheicc.org/documents/KNDRFinalReport12October2011.pdf “…3. This report covers the July to September 2011 period. It focuses on three broad and interrelated areas: progress in implementation of the Constitution; electoral reforms and preparedness for the next General Election; and the legacy of post-election violence:, notably, continuation of the ICC intervention in the Kenyan situation, and the problem of Internally Displaced Persons (IDPs). …The Legacy of Post-Election Violence 16. The ICC process with regard to the Kenyan case has entered a new phase: the six suspects have been to The Hague for confirmation of charges hearings. After diplomatic efforts to secure a deferral failed, the government lodged an unsuccessful admissibility challenge in April 2011, and appealed the decision of the court, when it was rejected at the first instance. However, the Appeals Chamber observed that the government had not demonstrated any evidence of local investigations. The two parties in the coalition appear not to have a coherent approach to the ICC; there are those in favour and those keen to defer or even halt the intervention. 17. Public opinion also shows that over half of the people believe the government lacks the will to investigate or prosecute suspected perpetrators of the post-election violence. At least 58 per cent believe the government cannot conduct local investigations. This suggests that public confidence in the government‟s ability to fight impunity remains low. It also suggests that impunity, as an underlying cause of the post-election violence, has not been addressed. Nonetheless, the continued lack of a coherent policy position on the ICC and impunity means sectarian interests continue to dominate and direct government actions. Overtures to protect political careers rather than articulate and pursue a coherent government policy on holding people accountable appear to dominate this legacy of post-election violence. 18. Public support for the ICC has remained high. Up to 65 per cent of Kenyans are happy that the ICC is pursuing the six suspects of post-election violence. A similarly high number of people, 64 per cent, trust that the ICC can effectively protect witnesses. This suggests that trust in public institutions and their ability to address PEV remains low. There are very high expectations for the ICC to deliver justice to victims. 19. Although the ICC is designed to prosecute those who bear the greatest responsibility, persisting impunity for low and middle-level perpetrators continues to pose a threat to future stability: Past review reports have shown that a majority of Kenyans believe investigations by the ICC will not trigger violence. The perception that the ICC is for „big people‟ may in fact harden impunity among the low-level perpetrators unless a local deterrent mechanism is put in place. However, the debate on domestic accountability for international crimes appears to have subsided with the continuing confirmation of hearings of charges at the ICC. …Conclusions …26. The legacy of the post-election violence continues to manifest itself in two important ways: the ICC intervention and the IDPs problem. Although the ICC has intervened and the confirmation of charges hearings is going on, the country must begin thinking about domestic accountability. The country must establish mechanisms to hold lower and middle level and other perpetrators accountable. Public awareness on complementarity – awareness of domestic accountability for international crimes -- should be built in earnest and before the next elections.”…” V. RELATED NEWS AND OPINIONS 1. “Mombasa lawyer picked to join ICC,” by Brian Otieno, The Star, 8 November 2011 http://www.the-star.co.ke/local/coast/48197-mombasa-lawyer-picked-to-join-icc 2. “Road to 2012 - Expecting the Unexpected,” The Star, 7 November 2011 http://www.menafn.com/qn_news_story.asp?storyid={0bfb9dc1-cdc9-491d-b672-66e2e59cc17e} 3. “Families of Ocampo witnesses get threats,” by Dominic Wabala and Kamore Maina, The Star, 7 November 2011 http://www.the-star.co.ke/national/national/47984--icc-witnesses-panic-over-exposure 4. “ICC warns lawyer over witnesses,” by Dave Opyo, Daily Nation, 7 November 2011, http://www.nation.co.ke/News/politics/ICC+warns++lawyer+over+witnesses/-/1064/1269030/-/jb1ca2z/-/index.html 5. “Poll: Public support for ICC rises following pre-trial hearings,” by Tom Maliti, ICC Kenya Monitor, 7 November 2011, http://www.icckenya.org/2011/11/poll-public-support-for-icc-rises-following-pre-trial-hearings/ 6. “The Ocampo Six and the confirmation hearings at the ICC: which way Kenya?” by Onyango Oloo, Daily Nation, 6 November 2011, http://www.nation.co.ke/oped/Opinion/-/440808/1268256/-/mrl6p1z/-/index.html 7. “ICC records improved public confidence,” by Steve Mkawale, Standard, 4 November 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000046195&cid=4& 8. “ICC hearings whet appetite for justice,” Daily Nation, 4 November 2011, http://www.nation.co.ke/News/politics/ICC+hearings+whet+appetite+for+justice+/-/1064/1267364/-/view/printVersion/-/10kfah6z/-/index.html 9. “Nguyai evidence fuels Ocampo case,”by Oliver Mathenge, Daily Nation, 4 November 2011, http://www.nation.co.ke/News/politics/Nguyai+evidence+fuels+Ocampo+case+/-/1064/1267360/-/view/printVersion/-/pav5v/-/index.html 10. “Did Moreno-Ocampo rely only on Waki and KNCHR reports for Kenya cases?: Part IV,” by Tom Maliti, ICC Kenya Monitor, 3 November 2011, http://www.icckenya.org/2011/11/did-moreno-ocampo-rely-only-on-waki-and-knchr-reports-for-kenya-cases-part-iv/ 11. “Kenyan reporters get to grips with ICC as confirmation of charges hearings in cases connected with post-election violence get underway,” IWPR, 3 November 2011 http://iwpr.net/report-news/international-justiceicc-augsept-11-0 12. “Ocampo trashes Uhuru group claims,” by Oliver Mathenge, Daily Nation, 2 November 2011, http://www.nation.co.ke/News/politics/Ocampo+trashes+Uhuru+group+claims/-/1064/1266400/-/10d5bv4z/-/index.html 13. “Did Moreno-Ocampo rely only on Waki and KNCHR reports for Kenya cases?: Part III,” by Tom Maliti, ICC Kenya Monitor, 2 November 2011, http://www.icckenya.org/2011/11/did-moreno-ocampo-rely-only-on-waki-and-knchr-reports-for-kenya-cases-part-iii/ 14. “Verdict in ICC Kenya cases due mid January 2012,” by Judie Kaberia, Capital FM News, 2 November 2011, http://www.capitalfm.co.ke/news/2011/11/verdict-in-icc-kenya-cases-due-mid-january-2012/ 15. “Anyah: Meet victims’ lawyer at The Hague,” by Evelyn Kwamboka, The Standard, 2 November 2011, http://www.standardmedia.co.ke/sports/InsidePage.php?id=2000046022&cid=4 16. “Did Moreno-Ocampo rely only on Waki and KNCHR reports for Kenya cases?: Part II,” by Tom Maliti, ICC Kenya Monitor, 1 November 2011, http://www.icckenya.org/2011/11/did-moreno-ocampo-rely-only-on-waki-and-knchr-reports-for-kenya-cases-part-ii/ 17. “Kenya, Somalia invoke ICC on Al Shabaab<http://ijcentral.org/news/kenya_somalia_invoke_icc_on_al_shabaab/>,” by Simon Ndonga, IJ Central, 31 October 2011, http://ijcentral.org/news/kenya_somalia_invoke_icc_on_al_shabaab/ 18. “Tribal Politics Must Be Stopped In 2012,” by Ngunjiri Wambugu, The Star, 31 October 2011, http://www.the-star.co.ke/opinions/ngunjiri-wambugu-/47021-political-tribalism-must-be-stopped-in-2012 19. “Did Moreno-Ocampo rely only on Waki and KNCHR reports for Kenya cases?: Part I,” by Tom Maliti, ICC Kenya Monitor, 31 October 2011 http://www.icckenya.org/2011/10/did-moreno-ocampo-rely-only-on-waki-and-knchr-reports-for-kenya-cases-part-i/ 20. “ICC victims’ lawyer anxious over reparations,” by Judie Kaberia, Capital FM, 31 October 2011, http://www.capitalfm.co.ke/news/2011/10/icc-victims’-lawyer-anxious-over-reparations/ 21. “ICC judges to issue simultaneous decision in two Kenya cases,” by Tom Maliti, Kenya Trial Blog, 27 October 2011, http://www.icckenya.org/2011/10/icc-judges-to-issue-simultaneous-decision-in-two-kenya-cases/ 22. “Kenya: ICC Trials a David Vs. Goliath Story,” by Shailja Patel, Pambazuka News, 27 October 2011, http://allafrica.com/stories/201110281061.html 23. “Muthaura wants Ocampo censured over interview,” by Judie Kaberia, Capital FM, 26 October 2011, http://www.capitalfm.co.ke/news/2011/10/muthaura-wants-ocampo-censured-over-interview/ 24. “Kenya: ICC Dilemma - to Help IDPs or Not?” by Nzau Musau, Nairobi Star, 26 October 2011, http://allafrica.com/stories/201110270064.html?viewall=1 25. “Count down to ICC decision on Kenya case begins,” by Evelyn Kwamboka, The Standard, 26 October 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000045618&cid=4 26. “Kenyan Chief Justice outlines progress in judicial transformation,” by Tom Maliti, ICC Kenya Monitor, 25 October 2011, http://www.icckenya.org/2011/10/kenyan-chief-justice-outlines-progress-in-judicial-transformation/ 27. “Ruto, Kosgey, Sang in final plea to avoid ICC trial,” by Peter Leftie, Daily Nation, 25 October 2011, http://www.nation.co.ke/News/politics/Ruto++Kosgey++Sang+in+final+plea+to+avoid+ICC+trial/-/1064/1261566/-/vfjaxl/-/ 28. “Gaddafi's influence in Kenya,” by Isaac Ongiri, The Standard Media, 24 October 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000045359&cid=4 29. “Kenya: Six People, Not Tribes Are On Trial, ICC Tells Citizens,” by Murithi Mutiga, The Nation, 22 October 2011, http://allafrica.com/stories/201110240864.html 30. “Kenya: The Nation and the ICC - the Power of Apology,” by Shailja Patel, AllAfrica, 20 October 2011, http://allafrica.com/stories/201110210530.html 31. “Kenya: ICC Victims' Lawyer Anyah in Country's Visit,” by Oliver Mathenge, The Nation, 20 October 2011, http://allafrica.com/stories/201110210787.html 32. “Proceedings against the Ocampo 6 do not bar anyone contesting presidency,” by Onyango Oloo, Daily Nation, 20 October 2011, http://www.nation.co.ke/oped/Opinion/-/440808/1258800/-/ms7l17z/-/ 33. “Kenya: ICC Judges Urged to Dismiss Uhuru, Ali Plea,” by Oliver Mathenge, The Nation, 19 October 2011, http://allafrica.com/stories/201110191010.html 34. “Social media a new threat to the ICC,” by Judie Kaberia, Capital FM, 19 October 2011 http://www.capitalfm.co.ke/news/2011/10/social-media-a-new-threat-to-the-icc/ 35. “You just might be sued for that nasty Facebook comment,” by Kui Kinyanjui, Business Dialy, 19 October 2011, http://www.businessdailyafrica.com/You+just+might+be+sued+for+that+nasty+Facebook+comment+/-/539444/1258390/-/bkra1qz/-/ 36. “Raila says Kibaki liable for 2008 post-poll chaos,” Capital FM, 19 October 2011 http://www.capitalfm.co.ke/news/2011/10/raila-says-kibaki-liable-for-2008-post-poll-chaos/ 37. “Mutula sides with Ocampo on evidence,” by Wambui Ndonga, Capital FM News, 15 October 2011, http://www.capitalfm.co.ke/news/2011/10/mutula-sides-with-ocampo-on-evidence/ 38. “Tanzania: Ocampo Urges Judges to Confirm Ruto Charges,” by Oliver Mathenge, The Citizen, 15 October 2011, http://allafrica.com/stories/201110170111.html 39. “Ocampo links Raila to poll violence,” by Oliver Mathenge, Daily Nation, 14 October 2011, http://www.nation.co.ke/News/politics/Ocampo+links+Raila+to+poll+violence+/-/1064/1255622/-/swm360/-/ 40. “Kenya: Chana Accuses Ruto's Lawyers of Threats,” by Nzau Musau, Nairobi Star, 14 October 2011, http://allafrica.com/stories/201110141217.html 41. “Ocampo wants ICC to reject Kenya quest for evidence,” Daily Nation, 14 October 2011 http://www.nation.co.ke/News/politics/-/1064/1254994/-/8bj60x/-/index.html 42. “Complementarity and Kenya at the ICC – Lessons to be Learnt Under Art. 17 and 19,” by Steven Kay QC, International Law Bureau, 13 October 2011, http://www.internationallawbureau.com/blog/?p=3353 43. “Q&A with Victims’ Lawyer Sureta Chana: We can’t even talk about the long term because victims are in the same place as just after the violence,” by Tom Maliti, ICC Kenya Monitor, 11 October 2011, http://www.icckenya.org/2011/10/qa-with-victims’-lawyer-sureta-chana-we-can’t-even-talk-about-the-long-term-because-victims-are-in-the-same-place-as-just-after-the-violence/ 44.“Kenya: ICC Could Be Recipe for Chaos, Says Tuju,” by Roy Agoya, Nairobi Star, 11 October 2011, http://allafrica.com/stories/201110111008.html VI.AUDIOVISUAL RESSOURCES 1. “Capital Talk_Luis Moreno Ocampo Part 1,” K24TV, 6 October 2011, http://www.youtube.com/watch?v=V4Zw0-STmBg 2. “Kenyans wait for ICC verdict,” AlJazeera English, 5 October 2011, http://www.youtube.com/watch?v=AZr930D0g1w 3. “ICC hearings create huge social media buzz,” NTVKenya, 3 October 2011, http://www.youtube.com/watch?v=rrWQS4d0AMY 4. “Uhuru Kenyatta faces off with Ocampo,” NTVKenya, 29 September 2011 http://www.youtube.com/watch?v=wA9wUIBJnoU 5. “The Mungiki connection,” NTVKenya. 26 September 2011, http://www.youtube.com/watch?v=tbpcFS8SgeU ************************************************ 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 |
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