Following the collapse of the case against President Uhuru Kenyatta of Kenya, ICC prosecutor Fatou Bensouda made public her case against Mr. Kenyatta for his alleged role in the 2007-08 post-election violence in Kenya. More than 1300 people died and 300,000 were displaced.
You can find the public [redacted] version of the prosecution pre-trial brief here.
UPDATE: And here is the defence’s response.
The ICC prosecutor has dropped the charges against President Uhuru Kenyatta, citing the lack of evidence due to non-cooperation by the Kenyan government. Mr. Kenyatta stood accused of playing a significant role in the 2007-08 post-election violence in Kenya in which at least 1300 people died and over 300,000 were displaced.
Four quick observations.
What does this mean for reconciliation in Kenya? Not much. 2007-08 shattered the myth of Kenya as a peaceful oasis in an otherwise volatile region. Kenyans are yet to comprehensively deal with the shock of seeing what neighbors could do to one another. The preferred MO has been to sweep things under the rug. That was the logic of the Kenyatta-Ruto alliance (the land issues that erupted in clashes between their respective constituencies have not been resolved). It is the same logic that drove the peace-at-all-costs campaign that stifled open discussion of contentious national issues ahead of the 2013 election.
For better or worse, Kenyans are desperate to move on past 2007-08. But the weight of historical injustices, inequalities, and the continued failure to address them are constant reminders that 2007-08 might happen again.
A panel of judges at the ICC will issue their ruling tomorrow afternoon on whether or not six accused Kenyans will stand trial. The six include two declared presidential candidates. Either way the ruling will have a non-trivial impact on the pursuit of justice for the victims of the 2007-08 post-election violence (PEV). It will also significantly shape the politics of coalition building in this year’s general elections.
Because of the ICC process, the Kenyan justice system has put on ice its own process of holding the perpetrators of the PEV to account. A non-confirmation of the charges against at least some of the six co-accused will add the 2007-08 PEV to the long list of crimes against Kenyans, many of which have been committed by the high and mighty, that have gone unpunished.
Justice is political. Therefore, there is no doubt that if the process of prosecuting the crimes committed in the PEV returns to Kenya none of the big fish will be held accountable. That is the sad truth.
This is why despite the noisy political environment, a majority of the PEV victims (and other Kenyans) still back the ICC process. At the very minimum they want justice to appear to be served.
At the moment the problem of justice remains a worry largely monopolized by the 300,000 or so Kenyans in IDP camps and the relatives of the over 1,300 who were killed. [The media and the political class are squarely to blame for this shameful situation.] For the rest of the country, focus has shifted to the politics of the general elections due later this year. To this we now turn.
Two of the accused, William Ruto and Uhuru Kenyatta have declared their interest in the presidency. Mr. Kenyatta is currently the second most preferred presidential candidate after Prime Minister Raila Odinga. Mr. Ruto, while not as popular nationally, still commands a sizeable chunk of the votes in the country’s most populous province – the Rift Valley. The Rift Valley has also been the hotbed of political violence in country’s history, most of it over land.
A confirmation of the charges will seriously dent the presidential ambitions of Messrs Ruto and Kenyatta. It will make it harder for either of them to sell their candidacy outside of their immediate ethnic constituency. It will also give their opponents (and there are plenty) an opportunity to hold themselves as the clean candidates that ought to succeed Kibaki. Needless to say, a non-confirmation would bolster the duo’s campaigns. What will this mean for the general election?
It is common knowledge that the man to beat in the 2012 election will be Mr. Odinga. The two scenarios above will impact the outcome of the election mainly through their influence on the coalition building abilities of the anti-Odinga crowd.
More on this tomorrow in reaction to the ICC ruling.
A few days ago a Kenyan judge ordered the government to arrest Sudanese President Omar al-Bashir if he ever sets foot in Kenya. Mr. Bashir has an outstanding arrest warrant against him from the ICC for crimes against humanity committed since 2003 in Darfur.
The ruling has since metastasized into a full blown diplomatic row; Khartoum expelled the Kenyan ambassador before rescinding the expulsion, and is now threatening to cut all trade ties with Kenya, expel Kenyans living in Sudan and deny any planes leaving or going to Kenya from flying in its airspace – if the government does not take back the ruling in two weeks.
The diplomatic row aside, the case has implications for the reform process in Kenya. The case is a test of the depth of the Kenyan judiciary’s new found independence from the executive.
According to Khartoum:
“al-Bashir expects Nairobi to scrap the arrest warrant within the next two weeks and not simply file an appeal.”
That is not how the judicial process works in a democracy. The executive cannot just scrap a judicial ruling. Within Kenya, for the sake of precedence the government must be seen to be complying with court rulings. The Chief Justice has already warned the executive against ignoring the court ruling saying that
“If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law.”
It remains unclear what the executive will do given Khartoum’s two week ultimatum. Disregarding the court ruling will come with consequences for the individuals involved – in particular the Foreign Minister and the Commissioner of Police.
Current Deputy Prosecutor of the ICC, Fatou Bensouda, will become the next top Prosecutor at the International Criminal Court. What does this mean for the future of the ICC, especially with regard to African cases?
JiC poses the following question:
….. Bensouda becomes the first African Prosecutor at the ICC. This fact will almost surely garner the most media attention. The African Union has been adamant that an African candidate would be selected, and they got their wish. It will now be very interesting to see how the AU deals with an African Prosecutor. The AU has often expressed frustration and, at times, outright hostility towards the Court for what it, and many of its member states, see as undue bias towards African nations and leaders. Now that the AU has its chosen candidate, will its attitude and rhetoric change?
I doubt it. The African Union’s opposition to the ICC was never predicated on the region of origin of the prosecutor but on the fact that, being largely a club of dictators and pseudo-democrats, it wanted to protect its own. That will not change with the retirement of Ocampo.
In my view the ICC remains to be a powerful source of leverage for African civil society groups against their rulers who oftentimes are inclined to use violence in an attempt to hold on to power.
Without the ICC, all these groups would have are a bunch of great powers and former colonizers full of bark and no bite and who will turn a blind eye to murderous dictatorship in the name of cheap oil and other commodities.
I hope that the court will continue in its task of being a voice to the voiceless, albeit with a little bit more tact (by which I mean the acknowledgement that justice is, ultimately, political).
I have previously commented on the court here, here and here.
UPDATE:
The BBC reports:
Sudan ordered the expulsion of the Kenyan ambassador after a Kenyan judge issued an arrest warrant for Sudan’s President Omar al-Bashir, Sudan’s foreign ministry has said.
Mr Bashir is wanted by the International Criminal Court (ICC) for alleged war crimes in Darfur.
Sudan has ordered the Kenyan ambassador to leave the country within 72 hours.
It has also ordered the Sudanese ambassador in Kenya to return to Khartoum.
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A Kenyan court has issued an arrest warrant for Sudan’s President Omar al-Bashir over alleged war crimes in Darfur.
The ruling came after Kenya allowed Mr Bashir to visit in August in defiance of an International Criminal Court (ICC) warrant for his arrest.
The judge said he should be arrested if he “ever set foot in Kenya” again, the AFP news agency reports.
Kenya is a signatory to the treaty which established the ICC in 2002.
The new Kenyan constitution requires that the government implements its international treaty obligations. The ruling, though without much bite – I doubt Bashir will need to be in Kenya any time soon, has immense symbolism in the region.
It also matters for Kenyan domestic politics. Presently, a few high ranking Kenyan politicians – including the Finance minister, two former ministers and former police boss – are on trial at the ICC for crimes against humanity. The accused await judgment on the admissibility of their cases later this year or early next. The Bashir ruling means that if the charges against the “Ocampo Six” are confirmed but the government drags its feet in implementing an arrest warrant then the courts will step in.
More on the Bashir case here and here.
In other news, Uganda and Tanzania have rejected Khartoum’s petition to join the East African Community, citing “several issues like their democracy, the way they treat women and their religious politics.” Yeah right.
The government of Kenya has lost in its bid to convince the ICC that it has the political will and capacity to try key perpetrators of the 2007-08 post-election violence (PEV). Kenya had asked for six months to get its justice system in order and convince the ICC that it could bring to book those who planned and carried out the murder of over 1300 people and the displacement of hundreds of thousands in 2007-08. More on this here.
The Kenyan political elite find themselves in a pickle. Less than two years ago parliament thought that they could punt on addressing the PEV by deferring the cases to the ICC. It turns out Ocampo and the court were actually serious. Realizing this, they (the Kenyan gov.) attempted to hurriedly create a local process with the hope of persuading the court to stop the proceedings at the Hague.
But even a blind sheep could see through the government’s insincere attempts to clean up the judiciary or “investigate” the key suspects.
The Kenyan civil society remains adamant that the government has neither the capacity nor political will to prosecute the crimes committed in relation to the 2007 general elections.
Now the clock is ticking. With parliament and the Kenyan legal epistemic community largely in charge of naming the new judges that will staff the supreme court (and the wider judiciary) the accused and their political godfathers are in a panic. They must try and clean up shop under the current system or they will lose big, soon. Realizing the gravity of the situation, the same ethnic chiefs demigods politicians who were running around screaming “sovereignty” and “neo-colonialism” have since gone silent.
The Kenyan case has also generated a lot of heat with regard to the geopolitics of the ICC.
Many in Kenya and across Africa have (sometimes rightfully) criticized the ICC. But in my view it remains to be a necessary institution in the fight against impunity and murderous dictatorship on the Continent. (Pardon the phrase) We cannot throw out the baby with the bath water.
Let’s not kid ourselves. Without the ICC the families of those women and children that were burnt alive in a Church in Kiamba, Eldoret or those killed in retaliatory attacks in Naivasha will never get justice. That is the reality.
Remember, more Kenyans were killed in the months before the elections of 1992 and 1997 than in 2007-08 and yet the Kenyan political class merely pushed the unbearable truth under the rug. Also of note is the fact that the present anti-ICC crusade comprises those suspected to have financed opposite sides of the PEV.
The situation is a grim reminder of the Swahili proverb that says when the elephants fight it is the grass that suffers.
To those who talk of the ICC’s infringement on African nations’ sovereignty I’d like to pose a question: Who’s sovereignty is being violated? Is it al-Bashir’s or the Darfuris?; is it the Central Africans’ or Jean Pierre Bemba’s?; is it the Kenyans’ across the Rift Valley or the sovereignty of the Ocampo six?
Embattled Kenyan politician William Ruto’s attempt to stop the ICC prosecutor Moreno Ocampo from issuing summons against him have hit a snag.
The three judge panel at the ICC rejected Mr. Ruto’s claim that Mr. Ocampo did not conduct proper investigations but instead relied on findings and reports by interested parties in Kenya, including the Waki Commission and the Kenya National Commission on Human Rights.
Mr. Ruto has been adversely mentioned by Mr. Ocampo’s office – along with five others – as a key mastermind of the violence that rocked parts of Kenya following disputed elections in 2007. More than 1300 people died and hundreds of thousands were displaced. Most of the displaced still live in makeshift tents in IDP camps.
There is something to be said about the fact that the International Criminal Court (ICC) has mostly concentrated on atrocities committed on the African continent. Charges of a regional bias emerging from African State Houses definitely have some truth to them. For the court to appear serious about ending offenses that shock the human conscience like genocide and ethnic cleansing it must have a balanced, global reach.
That said, the current anti-ICC mood widespread across Africa is unfortunate. The African Union (AU) defended Sudan’s Omar al-Bashir against the ICC. Now it emerges that Kenya is lobbying other African states to garner support for an anti-ICC resolution in the upcoming AU summit later this month. Four prominent Kenyan politicians, a former police commissioner and a media personality have been named by the ICC as key suspects in the violence that rocked the East African nation in 2007-08.
In retrospect, the ICC might have shot itself in the foot by aggressively pursuing the Kenyan case. Mr. Ocampo’s actions betrayed the ill-informed view that Africa’s many diverse countries are all the same. Kenya is not Sierra Leone. The country receives less than 5% of GDP in overseas development assistance and has considerable regional influence. Many have been shell-shocked by Kenyan politician’s resolve to pull out of the ICC, even in the face of international pressure. Their threats are credible because they know they can without too high a cost.
The biggest losers from this anti-ICC drive within the AU will be citizens of poorer, less able African states. It is places like Chad, (North) Sudan, Central African Republic, Niger, Guinea, Zimbabwe, among others, where the collective interests of targeted communities are more or less not represented in the capital that most need the ICC. If Kenya succeeds the Deby’s and Mugabe’s of this world will get even more emboldened.
Impunity on the African continent is on the rise, again.
Tinderet MP and Minister of Industrialization Henry Kosgey has resigned. Mr. Kosgey is being charged with 12 counts of abuse of office and faces a maximum of 120 years in prison if convicted. In the latest case of fraud linked to the Minister, vehicles older than 8 years old were illegally imported into the country under his direction.
Only a few weeks ago Mr. Kosgey was among five prominent Kenyan politicians and a radio host named as suspects by the ICC prosecutor Luis Ocampo in relation to the post election violence in Kenya (2007-08) that killed 1300 and displaced 300,000.
Mr. Kosgey is Prime Minister Raila Odinga’s pointman in the Rift Valley and is the current chairman of the Orange Democratic Movement (ODM).
If Omar al-Bashir goes to war with Southern Sudan over oil it will be because the genocidal tyrant from Khartoum is benefiting big from Sudan’s oil sector. The New York Times reports that Mr. Bashir may be worth up to $ 9 billion. Yes, nine billion.
Despite the country’s oil wealth 40% of Sudanese live on less than a dollar a day. Someone born in Sudan can expect to live to 55.
Mr. Bashir has been indicted by the ICC over crimes against humanity committed in Darfur.
Southern Sudan will conduct a secession referendum on January 9th. Fears abound of a potential flare up between the north and Southern Sudan over oil-rich borderlands.
The Kenyan parliament passed a motion urging the country’s executive to pull out of the ICC treaty. It was left to Gichugu MP Martha Karua to be the sole defender of the ICC process with regard to Kenyan victims of the post-election violence that rocked the country in 2007-08.
The cases against the six named suspects will continue since the procedure to unsign from the treaty takes up to a year and even then signaling the intent to withdraw does not extricate a member country from its obligations while it is still a member. President Kibaki and Premier Odinga have yet to respond to the new developments.
My lukewarm support for the ICC process comes for the fore again: Recognizing the rights of sovereign states to solve their own problems (the Kenyans will not. No illusions about that. They will trade stability for injustice) and while registering my doubt of the ICC’s effectiveness at delivering justice (no apolitical body can do what it purports to do), I am still of the considered opinion that the Chads and CAR’s of this world need an international policeman to keep their tyrannical leaders in check.
ICC-CPI-20101214-PR614
As you know, tomorrow I will file two applications for summonses to appear for six individuals we believe are the most responsible for the post-election violence.
I believe summonses are sufficient to ensure the appearance of all six suspects. But as ICC Prosecutor, I am requesting that clear conditions be imposed on them, namely:
In addition, they must respond to all requests by ICC judges; they must attend all hearings when required, and post bond if the judges so instruct them.
These conditions are strict. They are in accordance with the Rome Statute and ICC rules.
Let me be clear.
If the suspects do not comply with the conditions set by the Chamber, I will request arrest warrants.
If there is any indication of bribes, intimidation or threats, I will request arrest warrants.
I expect the suspects to indicate to the Chamber shortly their intention to surrender voluntarily.
Source: Office of the Prosecutor
On Wednesday a few Kenyan cabinet ministers, wealthy businessmen and security chiefs – mostly from central Kenya and the Rift Valley – will be exposed as suspects behing the post election violence in 2007-08 that killed 1333 Kenyans and displaced hundreds of thousands. Needless to say, this will have significant political consequences.
The expected political realignments following the initiation of this phase of the ICC process will shed some light on what Kenyans should expect come 2012. It will also be a litmus test on how much the Kenyan political elite is committed to reforms and fighting impunity. Kibaki and Odinga will either have to defend or cut loose some of their most trusted lieutenants.
In other news Laurent Gbagbo is still refusing to relinquish power in the Ivory Coast. Moreno Ocampo should warn him that if any more people die as a result of his refusal to obey the electoral outcome he will be held responsible.
Elections have consequences.
President Omar al-Bashir just won’t shake the ICC off. The strongman of Khartoum already has an arrest warrant with his name on it for war crimes and crimes against humanity. To this the international criminal court has added three counts of genocide, the most serious charge in international law. It is interesting to see how friends of Khartoum, and African states in particular, will react to this new charge. The African Union chose to back Bashir the last time the ICC called for his arrest. Many African leaders have slighted the court for its disproportionate focus on African conflicts and human rights abuses.
Since 2003 Mr. Bashir has been waging a war against insurgents (led by the Chad-backed Justice and Equality Movement, JEM ) in the Darfur region in the west of the country. More than 200,000 people have been killed and millions displaced from their homes as a result.
kenopalo.com 