COUNTRY REPORT Konrad-Adenauer-Stiftung e.V.

KENYA KATHARINA NETT IRIS FÖLLNER

March 2011 ICC summons “Ocampo Six” – End of impunity? www.kas.de

Last week, written summonses issued supporting Luos was mainly directed against by the International Criminal Court Kikuyus who, belonging to the same ethnic (ICC) have been delivered to the group as president Kibaki, were perceived of suspects of 2007/08 post-election vio- supporting PNU. On the opposite side, at- lence (PEV) in . In December tacks were launched against ODM support- 2010, ICC Prosecutor Luis Moreno ers, mostly belonging to Luo, Luhya and Ka- Ocampo had made a request for sum- lenjin ethnic groups. The violent unrest left moning those personalities he be- over a thousand Kenyans dead and inter- lieved to be most responsible for the nally displaced around 600,000 people in committed , early 2008. widely known as the “Ocampo Six”. The way in which Kenya handles the ICC In response to the outbreaks of hostility, case is not only decisive for future rela- Kenya was confronted with the issue of tionship with her Western al-lies, but prosecuting the agitators of the post poll also a very important test of her will to events. Kenyan parliament, however, re- scatter impunity. jected a bill calling for the establishment of a local tribunal in order to try the main sus- BACKGROUND pects on a national level. Notably though, Finance Minister and The announcement of PNU candidate Mwai North MP , then Agricul- Kibaki as the winner of presidential elec- ture Minister, who are now facing trial at tions in 2007 triggered a period of violent The Hague, were among those who voted in clashes between PNU supporters on the one favour of the bill. Taking account of an ap- hand and ODM supporters on the other parent lack of political will at the highest hand. There was a widespread perception level and absence of credible effort to pros- among the Kenyan population that the re- ecute perpetrators nationally, a list contain- sults had been manipulated in favour of ing the names of post-election violence sus- president . Since the introduc- pects was handed over to the ICC to take tion of a multi-party system in Kenya in care of the process. This was a first step to 1991, voting in most communities is con- overcome a long culture of impunity prac- sidered to be along ethnic lines. Ethnic ten- tised by delinquents who escaped sentence sions based on historical injustice were one because they were part of the government. of the major reasons leading to the violent However, having a local tribunal deal with conflict between different tribes following punishment of post-election violence would the presidential elections. Whereas incum- have helped to strengthen Kenya’s judicial bent president Kibaki is a member of the system. At the same time it would have Kikuyu tribe, his opponent be- been a clear sign of Kenya’s willingness to longs to the Luo tribe. When ODM support- fight injustice and impunity on all political ers, headed by Odinga, took their disap- levels. proval to the streets, the situation dramati- cally escalated and brought the country on The Republic of Kenya became a State Party the brink of civil war. Aggression by ODM- to the ICC in 2005 when it ratified the Rome

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Konrad-Adenauer-Stiftung e.V. Statute, making it possible for the Court to Kenya’s founding President . investigate in crimes against humanity in In recent years he has, however, started to KENYA cases where the national government does engage in politics himself and is presently KATHARINA NETT not take action. As a consequence of the holding the positions of Deputy Prime Minis- IRIS FÖLLNER Kenyan government’s lack of prosecution ter and Minister for Finance of the Republic and in view of the fact that the ICC is a of Kenya. The third co-defendant of this March 2011 court of last resort, the International Crimi- case, Ali, was head of the Kenya Police at nal Court decided to authorise Luis Moreno the time of the presidential elections in www.kas.de Ocampo’s investigation in the cases of post- 2007. The police force is accused of killing election violence. It was only when the at least 400 people during post-election vio- summonses were announced in December lence. Currently, Ali is Chief Executive of the that the political elite seemed to realise the Postal Corporation of Kenya. The three sus- full scope of ICC’s mandate. Subsequently, pects received summonses to appear before the government launched a series of at- the Court in The Hague on 8 March 2011. tempts to stop investigations and to estab- lish a local tribunal within the framework of The second case is directed against William the new constitution yet again. This hap- Samoei Ruto, Henry Kiprono Kosgey as well pened on the basis that “The only reason as Joshua arap Sang who are being accused the post-election violence cases are being of crimes against humanity of murder, for- investigated by the ICC is because there is cible transfer and persecution. They are no appropriate local judicial mechanism”1. supposed to have committed or contributed to the commission of crimes in several loca- CASES AND SUSPECTS tions including Turbo town and Hills town. Violence by organised gangs of Kalenjin The ICC has established two cases against youth targeted civilian population, namely suspects of post-election violence in Kenya. the Kikuyu, Kamba and Kisii ethnic groups The first accuses Francis Kirimi Muthaura, as part of “widespread and systematic at- Uhuru Muigai Kenyatta and Mohammed tack”3. Ruto was Kenyan Minister for Higher Hussein Ali of being criminally responsible Education, Science and Technology until he as “indirect co-perpetrators […] for the was suspended for corruption charges in crimes against humanity of murder, forcible October 2010. Just like Ruto, Kosgey be- transfer, rape, persecution and other inhu- longs to the Orange Democratic Movement mane acts”2. More precisely, they are being (ODM) and has been Minister of Industriali- accused of murder of civilian supporters of sation of Kenya as well as Chairman of ODM political party in Kisumu, Kibera, Na- ODM. In January 2011 he stepped down kuru and Naivasha. According to the indict- due to corruption allegations against him. ment, the crimes against non-Kikuyu popu- Unlike the other suspects, Joshua arap Sang lation were carried out by members of is not a politician but head of operations at Mungiki. Having held several senior posi- the radio station Kass FM. Whereas Kosgey tions in government before, Muthaura is and Ruto are accused being responsible as currently head of the Public Service and indirect co-perpetrators of the mentioned Secretary to the . In this crimes (i.e. committing crimes through an- position he was among those people who other person) according to article 25(3)(a), received regular intelligence briefs on the Sang is suspected of having otherwise con- possible violence that would break out. tributed to the commission of the crimes in Uhuru for many years has been notably fa- accordance with article 25(3)(d) of the mous for the fact that he is the son of Rome Statute. By use of his radio pro- gramme, Sang is said to have collected 1 Is the establishment of a local tribunal supporters and provided signals to insiders enough to stop the ICC? In: of the plan on when and where to attack. . 2 International Criminal Court, . 3 Ibid.

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Konrad-Adenauer-Stiftung e.V. THE PROCEEDING loss of the country’s sovereignty by relin- quishing the cases to the ICC. However, KENYA So far, ICC summons have formally reached ODM, PNU as well as the government are KATHARINA NETT Kenya and were delivered to the six sus- divided on the question as to whether the IRIS FÖLLNER pects by the Kenyan police in order to make process should be deferred or not. In re- them sign the receipt of the documents. For sponse to the letter by the Kibaki adminis- March 2011 April 7 and 8, , Uhuru Ken- tration asking for deferral of the ICC pro- yatta, William Ruto, Hussein Ali, Henry Kos- cess, ODM Secretary General Anyang www.kas.de gey and have been summoned Nyong’o urged the Security Council to reject to the Pre-Trial Chamber of the ICC at The the request. ODM officials allied to Ruto, in Hague in The Netherlands. Usually, the turn, distanced themselves from Nyongo’o. International Criminal Court can only take action at the request of a signatory state to Even though China is willing to support the Rome Statute who is not able or willing Kenya’s cause, the majority of the Council to investigate a crime itself. In special cases members were not convinced that condi- Prosecutor can also tions are fulfilled for deferral under article launch investigations on his own initiative, 16 (Rome Statute) according to which there which was the case for the Republic of has to be a threat to international peace Kenya. and security. Despite all efforts, permanent members France, UK and the USA as well as Once a country has ratified the Rome Stat- Portugal and Germany made it clear that ute, any ICC process is only stoppable by its they would not support Kenya’s attempt of in-built mechanisms, meaning that it cannot deferral. In contrast to the chaotic scramble be cancelled but only be temporarily sus- for deferral, public opinion widely supports pended. For such a deferral, approval of all the trial of “Ocampo Six” at the Interna- five permanent members of the UN Security tional Criminal Court. Sixty percent of the Council is required or of the ICC, respec- Kenyan population would like the process to tively, in case the country demonstrates continue uninterrupted and 73 percent are ability to establish a local tribunal. Accord- optimistic about the prosecution of suspects ing to article 127 of the International at ICC. Harsh criticism against the policy of Crimes Act, a state can withdraw from the delaying the trials has been levelled by for- Statute at the earliest one year after the mer Minister of Justice who receipt of their request to the UN Secretary said that it aimed at protecting the political General. class and promoted impunity. She referred to a Motion issued in Parliament in Decem- THE CURRENT PUBLIC DEBATE ber seeking to repeal the International Crimes Act and withdraw Kenya from ICC. The has undertaken As outlined before, even in case of success several efforts to hamper the ICC in pros- this move would not suspend the current ecuting the “Ocampo Six”. One of them was investigations. the attempt to challenge the legality of ICC by saying that The Hague trials were pre- Meanwhile, public pressure continues piling served for failed states, which Kenya is not. on suspects to step aside from their official In March 2011 the government tried to con- positions, especially regarding Uhuru Ken- vince the United Nations Security Council of yatta, Francis Muthaura and Ali Hussein. the need to defer the trial by one year. The According to the new constitution, public request was based on the argument that servants with pending cases must first be suspects should be tried locally instead of cleared of all charges before they can re- being held accountable by a “colonial, im- sume their position. Criticism also aroused perialist court”4. Allegedly, politicians fear a on the PNU wing instructing the police to collect evidence on post-election violence, 4 Energy Minister Kiraitu Murungi, in: considering that the police was also in- as an impartial investigator.

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Konrad-Adenauer-Stiftung e.V. OUTLOOK

KENYA The Kenyan government had its chance to KATHARINA NETT establish a local tribunal, but since it failed IRIS FÖLLNER to effectively prosecute the masterminds of post-election violence, the ICC started to March 2011 take action. Therefore, attempts to defer the trials at ICC based on the argument that www.kas.de justice for the victims “will only be delivered here on our own soil”5 are rather hypocriti- cal and lack credibility. The trials finally open the chance for the country to have closure and let justice be done on post-poll unrest. Unless the government wants to continue its inconsistent strategy of im- punity, it should start to speak unanimously and advance reforms of the judiciary. Only then can it genuinely make a claim against the International Criminal Court and sub- stantiate the country’s ability to try sus- pects itself in future. If the intervention by the ICC can contribute to strengthening the judiciary in Kenya by pressuring it to be more assertive, it will take the country a big step forward. Once suspects have been tried at the ICC, Kenya can still prove her willingness to bring post-election violence perpetrators to justice by enforcing possible ICC sentences.

5 Wambui Mugo, in: , 10/03/2011.