ICC Confirms Four Kenya Cases Members of both political factions accused of responsibility for 2007-08 violenc e to stand

trial. By Blake Evans-Pritchard - International Justice - ICC ACR Issue 312, 23 Jan 12 A decision to bring four suspects to trial at the International Criminal Court, ICC, for inciting violence in Kenya in 2007-08 has been widely welcomed by right s activists in the country. At a January 23 hearing in The Hague, ICC judges ruled that four senior Kenyan f igures accused of inciting violence following the disputed presidential election of December 2007. Charges against two other suspects were dismissed for lack of evidence. The charges against William Ruto, Kenyas former education minister suspended on c orruption charges, Joshua Arap Sang, a broadcaster for Kass FM radio station, ca binet secretary Francis Muthaura, and deputy prime minister Uhuru Kenyatta, were upheld. Ruto, Muthaura and Kenyatta all stand accused of instigating the violence that s wept Kenya in late 2007 and early 2008. Arap Sang is accused of contributing tow ards the commission of these crimes by putting Kass FM at the disposal of those organising the violence. The four represent the two opposing sides in the election dispute and ensuing vi olence. They are divided accordingly into two cases, one against Ruto and Arap S ang of the Orange Democratic Movement, ODM, the other against Muthaura and Kenya tta of the Party of National Unity, PNU. Ruto, Arap Sang, Muthaura and Kenyatta remain at liberty pending the start of th eir trial, although presiding Judge Ekaterina Trendafilova stressed that this de pended on their continued cooperation with the court, and in particular on them not engaging in incitement to violence or hate speech. The clashes between ODM and PNU supporters following the December 2007 election led to the death of more than 1,100 people and displaced over 600,000 others. The ICC launched an investigation in March 2010 after the Kenyan state failed to initiate prosecutions itself. Although the ICCs decision to bring charges was governed by legal rather than pol itical considerations, the debate around the courts activities in Kenya is highly politicised. Some of the accused are seen as heroes by their supporters, while others regard them as criminals. Ahead of the ruling, the International Crisis Group warned that if the ICC was s een to favour one side or the other, it could have a serious impact on internal politics. If the announcements of the decisions on the charges were to be poorly coordinate d or framed, unequal treatment of the suspects could also exacerbate tensions, e specially between those groups that might feel persecuted and those that had no leaders before the court, the advocacy group said in a report.

However, this danger seems less likely now that two of the three accused in each case are to go on trial. The ICC chamber was not convinced that there was enough evidence to support proc eedings against Henry Kosgey, currently chairman of the ODM, or on the PNU side Mohammed Hussein Ali, Kenyas police chief at the time of the events and now head of the postal service. In the case of Kosgey, presiding Judge Trendafilova said the Office of the Prose ctor, OTP had relied on one anonymous and insufficiently corroborated witness. She also said that Kosgey had faced prejudice because certain key dates on which mee tings pertinent to his defence were alleged to have taken place were redacted fr om the evidence that the prosecutor provided. Ali was accused of inciting police to commit crimes in the eastern areas of Naku ru and Naivasha, but Trendafilova dismissed this on the grounds that no clear ev idence had been presented to suggest that police participated in on-the-ground a ttacks in these areas. When the judges reached their decision, one of the three presented a dissenting opinion. Judge Hans-Peter Kaul from Germany did not agree that the alleged offences shoul d be dealt with by the ICC. He argued that although the alleged crimes constitut ed serious offences under Kenyan criminal law, they did not constitute crimes ag ainst humanity as defined by the ICCs founding Rome Statute, and they should ther efore be tried in Kenya. Human rights group both in Kenya and abroad broadly welcomed the decision to pro secute four of the accused, although some had reservations about charges being d ropped against the two others. Ken Wafula, a human rights activist from Eldoret in eastern Kenya, where much of the violence took place, said the ruling had changed the future of his country. The 2012 elections will be peaceful, he said. The decision to proceed with this cas e means that the victims of post-election violence can now say they have not bee n let down by the international criminal justice system in the same way that the y have been let down by the local justice system. I am sure that those that might want to provoke further violence in future electi ons will think twice, because those of us who are witness to violence, or are vi ctims to it, will have the courage to be vigilant and report [to the ICC] everyt hing that has taken place. At the same time, Wafula said he was disappointed that not enough evidence had b een gathered to proceed with the other two cases, adding that he would be contac ting the OTP about the possibility of gathering more evidence. Under Article 61 of the Rome Statute, the prosecutor is entitled to submit a new request for a confirmation of charges if fresh evidence is found. We will be pushing the prosecutor to carry out more investigations and we are rea dy to help him so that these charges can be confirmed, Wafula said. Amnesty International also welcomed the ruling, while insisting that prosecution s for the post-election violence must not just end with the trial of four indivi duals. Todays decision by the ICC is an important milestone for victims in their search f

or justice, truth and reparations for crimes which took place during the post-el ection violence, Justice Nyangaya, director of Amnestys Kenyan office, told IWPR. Bu t these are just four individuals. Thousands of human rights abuses, some of whi ch may amount to crimes against humanity, took place during the post-election pe riod and thousands of victims are still waiting for justice. It is vital that th e Kenyan authorities open investigations and, where there is sufficient admissib le evidence, prosecute all those suspected of committing crimes.

Blake Evans-Pritchard was formerly Africa editor at IWPR.