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Kenya: Continued Statements, News and Opinion

24 Jan 2012

Dear all,

Please find below the latest information relating to yesterday's decisions by International Criminal Court (ICC) Pre-Trial Chamber II to move cases against William Samoei Ruto, Joshua Arap Sang, Francis Muthaura and Uhuru Muigai Kenyatta to trial for crimes against humanity during post-election violence in 2007-2008 in Kenya, as well as those declining to confirm charges against Henry Kiprono Kosgey and Mohammed Hussein Ali.

Below, you will find the latest ICC statements (I) statements and op-eds from members of the Coalition for the ICC (II), related new coverage (III), as well as audiovisual resources (IV).

Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the Coalition 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.

Best regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. ICC STATEMENTS

1. "Statement by the Prosecutor of the International Criminal Court on Kenya ruling," OTP-ICC statement, 24 January 2012, http://www.icc-cpi.int/Menus/ICC/Updates/

"Yesterday's ruling is critically important in many dimensions. Yesterday's decision is establishing individual responsibility for the post electoral violence but also for a peaceful Kenya.

We appreciate that the judges explained the decision in a public session and that there has been no reports of violence as a result.

Judges confirmed that the first acts of violence in 2007/08 were planned and organised by members of the ODM led by Ruto a year in advance. This generated retaliatory attacks against ODM supporters. The International Criminal Court has identified those who have to face justice. There are substantial grounds to believe they committed the crimes they are charged with but they are still presumed innocent.

Another significance of the ruling is that it defined what crimes against humanity are. It goes back to Nuremberg and makes clear that no country has sovereignty to attack civilians.

Talking about legal definitions, contrary to the Prosecution's allegations, the Chamber finds that acts of forcible circumcision do not constitute other forms of sexual violence but other inhumane acts (since not every act of violence targeted against a body part commonly associated with sexuality is sexual in nature.)

As any other court the ICC is making factual and legal decisions, but ICC intervention is helping Kenya move to a more peaceful future with no costs. In 2008, Kofi Annan helped establish peace in Kenya but what would be the cost of another post election violence in Kenya? More lives lost, more people displaced and not to mention millions in money.

We also appreciate the fact that the accused appeared voluntarily before the court. This goes to show Kenya is managing its transition to a less violent future. President Kibaki yesterday committed to solve the problems of victims of violence still displaced. Victims do not have to wait for a conviction before they receive any help. The government of Kenya has a responsibility to help its citizens. And to protect them. The Office is concerned about allegations of attacks against victims of the crimes.

Let me look to the future now.

We will keep investigating Kosgey and the activities of the police as well as crimes allegedly committed in Kibera and Kisumu. We will not appeal the decision.

Some of the accused have stated that they will appeal the decision. President Kibaki said Kenyan legal teams are studying the ruling. This is a legal right for the accused. The prosecution is preparing for trial but if the judges accept the appeal, this will delay the beginning of the trial. This further delay may be frustrating for victims but this is the legal process and we have to respect it.

It is in the hands of Kenyans themselves to solve the problems in Kenya. Kenya must decide on the candidates for the upcoming election and seize the opportunity to discuss the way forward and invest in the future.

Thank you. ..."

SEE ALSO:

1. Public summary, ICC Pre-Trial Chamber II, Decisions in the Cases the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang and the Prosecutor v. Francis Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 23 January 2012, http://www.icc-cpi.int/NR/exeres/7036023F-C83C-484E-9FDD-0DD37E568E84.htm

2. "Decision in the case The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali," ICC-01/09-02/11-382-Red, International Criminal Court, 23 January 2012, http://www.icc-cpi.int/iccdocs/doc/doc1314543.pdf

3. "Decision in the case The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang," ICC-01/09-01/11-373, International Criminal Court, 23 January 2012, http://www.icc-cpi.int/iccdocs/doc/doc1314535.pdf

II. COALITION MEMBER MEDIA STATEMENTS AND OP-EDS

1. "Kenya: ICC Judges OK Election Violence Trials - National Authorities Should Investigate Threats, Bring Others to Justice," Human Rights Watch media statement, 23 January 2012, http://www.hrw.org/node/104714

"(Brussels) - The decision on January 23, 2012 of an International Criminal Court (ICC) pre-trial chamber to send cases to trial against four Kenyans opens the door to justice for victims of Kenya's 2007-2008 election violence, Human Rights Watch said today. Kenya's authorities should take all reasonable steps to ensure that the decision does not lead to violence, and to stop violence if it does break out, given that people thought to have been cooperating with the ICC investigations have been threatened, Human Rights Watch said.

A majority of judges confirmed charges sought by the ICC prosecutor against William Samoei Ruto, Joshua arap Sang, Francis Kirimi Muthaura, and Uhuru Muigai Kenyatta in two separate cases. The cases related to crimes committed during the violence that followed what was widely perceived as as a rigged presidential election in favor of the incumbent, Mwai Kibaki, in December 2007. The election violence, which pitted ruling party supporters and the police against opposition-linked groups, claimed over 1,100 lives and forced at least 650,000 people from their homes. The majority of judges declined to confirm charges against two other people, Henry Kiprono Kosgey and Mohammad Hussein Ali.

"Today's decisions move forward the search for justice for those who lost their lives and their homes in Kenya's 2007-2008 election violence," said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. "The judges found that some of Kenya's most senior leaders should answer for deaths and displacement during the election violence. Trials will break with decades of impunity for political violence in Kenya."

In one case, a majority of the pre-trial chamber found substantial grounds- the standard applicable to the confirmation of charges - to believe that Muthaura and Kenyatta committed the crimes against humanity of murder, deportation or forcible transfer, rape, other inhumane acts, and persecution. The crimes are alleged to have been committed as part of an attack in Nakuru and Naivasha in late January 2008, directed against perceived supporters of the then-opposition Orange Democratic Movement (ODM).

Muthaura is the head of the public service and secretary to the Kenyan cabinet, while Kenyatta is the deputy prime minister and finance minister.

The judges declined to confirm charges against Ali, who was the Kenyan police commissioner at the time of the violence and is currently the head of the postal service.

The prosecutor had alleged that Ali - along with Muthaura - ensured that the Kenyan police did not intervene to stop attacks against perceived ODM supporters in Nakuru and Naivasha or punish those who carried them out. But the pre-trial chamber did not find sufficient evidence of the participation of the Kenyan police in the alleged attack in Nakuru and Naivasha. In its March decision issuing the summonses, the chamber had also found insufficient evidence that the police were instructed to use excessive force against ODM supporters.

Police officers, who killed at least 405 people during the violence, injured over 500 more, and raped dozens of women and girls, have had absolute impunity in Kenya. Human Rights Watch has previously called on the ICC prosecutor to continue investigations into police shootings and other abuses and to bring additional charges, if the evidence indicates that these abuses amount to crimes within the ICC's jurisdiction.

"Today's decision declining to confirm charges against Ali removes for now the last link between the ICC cases and rampant police abuses during the election violence," Evenson said. "While the ICC prosecutor should redouble his investigations of the police, the Kenyan authorities remain obligated to investigate unlawful police killings and abuse and bring to account those responsible."

In the other case, a majority of the pre-trial chamber found substantial grounds to believe that Ruto and Sang had committed the crimes against humanity of murder, deportation or forcible transfer, and persecution. Those crimes were alleged as part of an attack in several Rift Valley locations directed against perceived supporters of Kibaki's Party of National Unity (PNU) in late December 2007 and January 2008. The majority did not find the evidence presented by the ICC prosecutor sufficient to establish Kosgey's role.

Ruto and Kosgey are senior ODM members as well as members of parliament and former cabinet ministers. Sang was a radio host on the Eldoret-based Kass FM at the time of the violence.

The defendants or the prosecutor can seek permission to appeal the decisions on the confirmation of charges, but permission must be granted by the pre-trial chamber and is not automatic. The prosecutor could also seek to bring the charges that were not confirmed against Kosgey or Ali again, if the prosecutor's application is supported by additional evidence.

The ICC stepped in as a court of last resort after Kenya's authorities failed to bring to justice those responsible for the 2007-2008 election violence. According to a December 2011 Human Rights Watch report, in spite of government claims of investigationsover the past four years, only two killings have resulted in murder convictions. Victims of rape, assault, arson, and other crimes - along with those who suffered at the hands of police - similarly await justice.

"The ICC cases are key, but they always targeted a limited number of people," Evenson said. "With cases now dropped against two of the six, although further ICC proceedings are possible, it becomes all the more important for Kenya to act swiftly to establish a special judicial mechanism to widen accountability for the election violence."

All six people had appeared voluntarily before the ICC and were not subject to arrest warrants. For the four accused who will now face trial, the decisions do not change the situation. But a violation of any of the conditions set by the pre-trial chamber - including a ban on contact or interference with victims and incitement to violence - could subject them to arrest. Thecontinued cooperation of the four accused, as well as that of the Kenyan government, will be key as the cases move forward to trial, Human Rights Watch said.

The Kenyan government should also take steps to prevent supporters of the suspects from retaliating against other ethnic and political groups or those perceived to be assisting the ICC, and to stop violence if it does break out. In September 2011, family members of a suspected ICC witness were threatened. In December 2011, the offices of an Eldoret-based good governance organization suspected of collaboration with the ICC were raided. No one has been held to account. Victims participating in the ICC cases have consistently highlighted their safety concerns.

"The ICC is obligated to protect its witnesses, but Kenya's authorities also have a responsibility to protect the safety of all those within its borders," Evenson said. "To prevent further violence, the Kenyan authorities should show they take these threats seriously by conducting prompt and thorough investigations."

The ICC's presidency will establish a trial chamber, composed of three ICC trial division judges, to begin preparations for trial. In previous ICC cases, trial preparations have usually lasted at least a year following a decision on the confirmation of charges.

In the January 23 decisions, the majority of the judges charged Ruto, in one case, and Muthaura and Kenyatta, in the other case, as indirect co-perpetrators under article 25(3)(a) of the Rome Statute, which established the ICC, and charged Sang under article 25(3)(d) for contributing to the crimes allegedly committed.

In the case against Muthaura and Kenyatta, the majority found that the prosecutor had not shown sufficient evidence that destruction of property caused "serious injury to mental health" such that this could be included among the other inhumane acts charged. The inclusion of charges based on the destruction of property was a central concern of victims participating in the proceedings. In both cases, the majority pointed out that the destruction of property forms part of the acts underlying the charges of forcible transfer. Human Rights Watch interviewed numerous people whose livelihoods were entirely destroyed along with their property during the post-election violence.

The judges also considered the defendants' challenges to the court's jurisdiction.

Five of the six suspects had contended that the ICC does not have jurisdiction although serious crimes were committed because these crimes were not crimes against humanity. Under the Rome Statute, crimes against humanity are any of a number of acts - like murder, torture, or rape - committed as part of a widespread or systematic attack on a civilian population, pursuant to a state or organizational policy.

These defendants argued that the organizations alleged by the ICC prosecutor to have pursued the crimes against humanity as a policy - in the ODM case, a network drawn from the Kalenjin community, and, in the PNU case, the Mungiki, a criminal gang - are not organizations within the meaning of the Rome Statute, and therefore could not have formed an "organizational policy." Most of these defendants relied on the definition of "organization" in Judge Hans-Peter Kaul's dissenting opinions to the chamber's earlier decisions issuing summonses to appear in the cases.

Judge Kaul also dissented in the January 23 decisions in both cases. He found that although serious crimes were committed in Kenya, and urged their prosecution in Kenya, the crimes did not rise to the level of crimes against humanity and therefore fell outside of the ICC's jurisdiction.

In the case against Ruto and Sang, the majority declined to revisit its interpretation of "organization." In both cases, the majority found that the challenges were not fundamentally issues of jurisdiction, but rather related to the merits of whether crimes against humanity had taken place, a factual issue. The majority dismissed the challenges and found that there is sufficient evidence of an organizational policy to commit crimes against humanity to send the cases to trial.

Unlike decisions on the confirmation of charges, the parties do not need the permission of the pre-trial chamber to appeal decisions on jurisdiction.

Background
The Kenya investigation - the ICC's fifth - was opened in March 2010 after the prosecutor received authorization from the court. Kenya ratified the Rome Statute, which created the ICC, in 2005.

The 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. Human Rights Watch researchers documented several patterns of violence in the post-election period, including extrajudicial killings and excessive use of force by the police, and ethnic-based attacks and reprisals by militia groups on both sides of the political divide.

In March 2011, the pre-trial chamber issued summonses to appear for six people, and all six appeared voluntarily before the court in April. The hearings to determine whether to confirm charges in both cases - which preceded the January 23, 2012 decisions - were held in September and October.

In March 2011, following the issuing of summonses, the Kenyan government challenged the admissibility of the two Kenyan cases. It cited plans to begin or continue investigations of those responsible for the post-election violence in the context of reforms mandated by the new constitution, promulgated in August 2010. But the pre-trial chamber, in a May decision that was confirmed on appeal, rejected the government's admissibility challenge. The judges found no evidence that the government was actually investigating any of the six people named in the two cases. The judges held that, under the court's case law, a promise to investigate is not enough to stop existing ICC cases.

Human Rights Watch has called on the ICC prosecutor to analyze whether crimes falling within the ICC's jurisdiction were committed in Kenya's Mt. Elgon region, and if so, to consider opening additional investigations in the Kenya situation to bring to account the people most responsible. In Mt. Elgon, both Kenyan security forces and a local militia group, the Saboat Land Defense Forces (SLDF) committed numerous atrocities between 2006 and 2008. Like the crimes currently under ICC investigation, many of the crimes committed in Mt. Elgon appear to have been orchestrated for political purposes.

In addition to Kenya, the ICC prosecutor has opened investigations in the Central African Republic, Côte d'Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Libya, and northern Uganda. The prosecutor is also examining a number of other situations in countries around the world. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza and the West Bank."

2."Justus Nyang'aya: An important milestone, but the quest for justice should not stop here - Kenyans will only be able to close this regrettable chapter if all of the perpetrators are held to account," by Justus Nyang'aya, Amnesty International Kenya Director, Op-Ed, The Independent, 24 January 2012, http://www.independent.co.uk/opinion/commentators/justus-nyangaya-an-important-milestone-but-the-quest-for-justice-should-not-stop-here-6293711.html

"For more than four years, thousands of Kenyans have been waiting for justice following the violence that beset our country after the 2007 presidential elections. Yesterday's decision by the International Criminal Court that four senior political figures will stand trial is without doubt an important milestone for the victims of the attacks, described as "crimes against humanity". It has highlighted the fact that no one will avoid justice.

But the ICC ruling is just the first step in what should be a marathon of efforts to deliver justice and reparation to Kenyans. The survivors of these atrocities are eager to ensure that full and fair justice is delivered, and that all of the perpetrators involved in the atrocities will be held to account. This can only happen if these four accused are brought to trial swiftly and fairly.

During those trials survivors of the violence must not be sidelined. Not only must they be able to exercise their right to participate in proceedings - a right the Rome Statute accords them - but facilities must be provided to ensure that they can follow the progress of the trials taking place.

But this quest for justice doesn't stop with Uhuru Kenyatta, William Ruto, Joshua Arap Sang and Francis Muthaura. Kenyans will only be able to fully close this regrettable chapter of their recent history if all of the perpetrators are held to account. This means that the authorities in Kenya must follow the example of the ICC and open domestic investigations into abuses including the alleged killings, rapes, mutilations and severe injuries of civilians and hold those responsible to account. Justice delayed is justice denied.

Justus Nyang'aya is Amnesty International's Kenya Director"

SEE ALSO:

3. "ICC Will Hold Trials on Kenya's Post-Election Violence," by Joe DeCapua, VOA 23 January 2012, http://www.voanews.com/english/news/africa/decapua-kenya-amnesty-23jan12-137885353.html

Interview with Jonathan O'Donohue, legal advisor for international justice, Amnesty International

4. "Kenya: ICC ruling is 'important milestone for victims'," Amnesty International Press Release, 23 January 2012, http://www.amnesty.org.uk/news_details.asp?NewsID=19907&utm_medium=twitter&utm_campaign=newsfeed&utm_source=social

5. "ICC: NPWJ welcomes ICC ruling to commence trials for Kenyan post-election violence," No Peace Without Justice Press Release, 23 January 2012, http://www.npwj.org/ICC/ICC-NPWJ-welcomes-ICC-ruling-commence-trials-Kenyan-post-election-violence.html

6. "Four Kenya Post-Election Violence Suspects to Face Trial at ICC: Pre-Trial Judges Confirm Charges of Crimes Against Humanity for Ruto, Sang, Muthaura and Kenyatta But Say They Lack Evidence to Try Kosgey and Ali," Media advisory, Coalition for the International Criminal Court, 23 January 2012, http://www.coalitionfortheicc.org/documents/CICCMA_KENYA6_23012012_final__3_.pdf

III. RELATED NEWS COVERAGE

1. "KENYAN PRESIDENT ORDERS ADVISORY COMMITTEE AFTER ICC RULING," Hirondelle News Agency, 23 January 2012, http://www.hirondellenews.com/content/view/15184/564/

"Kenyan President Mwai Kibaki today instructed the country's attorney general to form a committee to study and advise the government after the International Criminal Court confirmed crimes against humanity charges against four top Kenyans. The four include Deputy Prime Minister Uhuru Kenyatta and member of parliament William Ruto, who both intend to run for the next presidential elections in 2013.

"I have with immediate effect directed the Attorney General to constitute a legal team to study the ruling and advise on the way forward," Kibaki said in a statement. "While the ICC process was underway, we enacted a new Constitution, substantially enhanced the capacity of our criminal justice system and made great strides in the reform within our system in the administration of justice." Kibaki called for peace and stability in the country.

The executive director of the Kenyan branch of the International Commission of Jurists, George Kegoro, meanwhile called for Kibaki and Prime Minister Raila Odinga to suspend Kenyatta and Ruto from their jobs.

Ruto told journalists that he was innocent and vowed to vie for the presidency despite the ICC's confirmation of charges against him. "This is to confirm I am firmly in the race. Let us meet at the ballot," Ruto told a news conference after the ICC decision was announced

Last week, Kenyatta also vowed to stay in the presidential race even if the ICC confirmed the charges against him.

... Sang also rejected the charges against him, saying that "lies, falsehood and plagiarism" had found their way to the ICC. "I will involve all the available legal means to contest the decision made both in the immediate and the long term," he said, explaining that he would appeal the decision."

IV. AUDIOVISUAL RESOURCES

1. "Kibaki issues statement on ICC ruling" NTV Kenya, 23 January 2012, http://www.youtube.com/watch?v=z-HD6uePLT4

2. "Muthaura's statement on ICC verdict," NTV Kenya, 23 January 2012, http://www.youtube.com/watch?v=WuLHGmFQpGo&feature=relmfu

3. "Post verdict reactions," NTV Kenya, 23 January 2012,
http://www.youtube.com/watch?v=Nzh2Fsic1pQ&feature=relmfu

4. "Gatundu resident vow to respect ICC verdict," KBC Kenya, 22 January 2012, http://www.youtube.com/watch?v=U1TC3LiIrWU&feature=related

5. "Kenyans in diaspora speak on ICC verdict NTV Kenya," 22 January 2012,
http://www.youtube.com/watch?v=4uBBGM6IQvc

6. "Uhuru and Ruto calm over ICC ruling," NTV Kenya, 19 January 2012,
http://www.youtube.com/watch?v=mm5iAaigpTM&feature=fvst