Public Annex B

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Public

Annex B

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Analysis Chart – INCRIM Disclosure Package 3

I. A. 1 – Attack ...... 3 I. A. 2 – Widespread ...... 3 I. A. 3 – Systematic...... 4 I. A. 4 – Directed against any civilian population...... 4 I. A. 5 – The conduct was committed as part of a widespread or systematic attack directed against a civilian population...... 4 I. A. 6 – The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population ...... 4 I. B ‐ Specific constituent elements of the Counts ...... 5 I. B. 1 ‐ Count 1 ‐ Murder Article 7(1)(a) ...... 5 I. B. 1. a – The perpetrator killed one or more persons...... 5 I. B. 1. b – Intent and Knowledge ...... 5 I. B. 1. c – Conduct was part of a widespread or systematic attack against any civilian population...... 5 I. B. 1. d – Conduct was intended to be part of a widespread or systematic attack against any civilian population...... 5 I. B. 2 – Count 2 – Deportation or Deportation or forcible transfer of population Article 7(1)(d) ...... 5 I. B. 2. a – The perpetrator deported or forcibly transferred, without ground permitted under international law, one or more persons to another State or location, by expulsion or other coercve acts...... 5 I. B. 2. b – Such person or persons were lawfully present in the area from which they were so deported or transferred...... 6 I. B. 2. c – The perpetrator was aware of the factual circumstances that established the lawfulness of such presence...... 6 I. B. 2. d – The conduct was committed as part of a widespread or systematic attack direct against a civilian population ...... 6 I. B. 2. e – The perpetrator new that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population ...... 6 I. B. 3 – Count 3 – Torture Article 7(1)(f) ...... 6 I. B. 3. a – The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons ...... 6 I. B. 3. b – Such person or persons were in the custody or under the control of the perpetrator ...... 7 I. B. 3. c – Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions ...... 7 I. B. 3. d – Intent ...... 7 I. B. 3. e – The conduct was committed as part of a widespread or systematic attack directed against a civilian population ...... 7 I. B. 3. f – The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civiliam population ...... 7

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I. B. 4 – Count 4 – Persecution Article 7(1)(h) ...... 7 I. B. 4. a – The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights ...... 7 I. B. 4. b – The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such...... 8 I. B. 4. c – Such targeting was based on political grounds...... 8 I. B. 4. d – The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Staute or any crime within the jurisdiction of the Court...... 8 I. B. 4. e – The conduct was committed as part of a widespread or systematic attack direct against a civilian population...... 8 I. B. 4. f – The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civiliam population ...... 8 II. A Indirect Co‐Perpetration Article 25(3)(a)...... 9 II. A. 1 – Existence of an agreement or common plan between two or more persons ...... 9 II. A. 2 – Coordinated essential contribution by each co‐perpetrator resulting in the realisation of the objective elements of the crime...... 9 II. A. 3 – Control over the organization...... 10 II. A. 4 – Organized and hierarchical apparatus of power...... 14 II. A. 5 – Execution of the crimes secured by almost automatic compliance by the subordinates with the orders given by the leader...... 17 II. A. 6 – The suspect fulfils the subjective elements of the crime charged...... 17 II. A. 7 – The suspect and the other co‐perpetrators must all be mutually aware and mutually accept that implementing their common plan may result in the realization of the objective elements of the crime...... 18 II. A. 8 – The suspect must be aware of the factual circumstances enabling him to exercise joint control over the crime...... 18 II. B Common Purpose Article 25(3)(d) ...... 21 II. B. 1 – A crime within the jurisdiction of the Court is attempted or committed by a group of persons acting with a common purpose...... 21 II. B. 2 – The individual contributed to the crime in any way other than those set out in Article 25(3)(a) to (c) of the Statute...... 21 II. B. 3 – The contribution was intentional ...... 24 II. B. 4 – The contribution was made with the aim of furthering the criminal activity or criminal purpose of the group...... 26 II. B. 5 – The contribution was made in the knowledge of the intention of the group to commit the crime ...... 28

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CRIMES AGAINST HUMANITY

I. A ‐ Common contextual elements – Crimes Against Humanity

I. A. 1 – Attack

There are no Facts linked to this Issue.

I. A. 2 – Widespread

Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes KEN‐OTP‐0048‐ KEN‐OTP‐ [Following election Internal security minister John MICHUKI placed a gag order on the media. The 0094 0048‐0094 Citizen news clip relates to the order and has some comments by a government spokes person at Alfred MUTUA, information minister Alfred TUJU and Raila ODINGA providing their views on 00:05:21 to the ban.] 00:05:32 00:05:49 to 00:05:21 00:06:20 Raila ODINGA ʺ...there is no way we can reach the people of Kenya even if we want to tell the 00:06:21 to people to come there is no way to reach themʺ 00:07:05 00:05:32

00:05:49 Government Spokes person Alfred MUTUA ʺThis is temporary measures we hope to lift in a day or two once the emotions get down, so it is not a ban on media or media freedom its just telling, its actually meant to have for vernacular radio especially not even television where people are calling in or inciting others to take up arms and burn the houses of their neighbours we are saying listen to the content first before you air it and you can air in 3 seconds later or 30 seconds later it is not telling you that you can not broadcast or that you cannot choose your contentʺ00:06:20

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes 00:06:21 Minister for Information Raphael TUJU ʺNow you do not take 10 year olds and 14 year olds who cannot even vote to seriously I think it was a bit of incitement in fact we know the specific incitement came from one FM stations we dealt with that FM station, this particular announcer was removed from air because he had said if the announcement of the lection is other than the Orange Democratic Movement candidate then you know get out of your homes and go to you know and got to the streets and do what you can to stop this from happening. That a was a specific announcer in a tribal language and it caused a lot of mayhem but we did deal with that ʺ00:07:05

I. A. 3 – Systematic

There are no Facts linked to this Issue.

I. A. 4 – Directed against any civilian population

There are no Facts linked to this Issue.

I. A. 5 – The conduct was committed as part of a widespread or systematic attack directed against a civilian population

There are no Facts linked to this Issue.

I. A. 6 – The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population

There are no Facts linked to this Issue.

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I. B ‐ Specific constituent elements of the Counts

I. B. 1 ‐ Count 1 ‐ Murder Article 7(1)(a)

I. B. 1. a – The perpetrator killed one or more persons

There are no Facts linked to this Issue.

I. B. 1. b – Intent and Knowledge

There are no Facts linked to this Issue.

I. B. 1. c – Conduct was part of a widespread or systematic attack against any civilian population

There are no Facts linked to this Issue.

I. B. 1. d – Conduct was intended to be part of a widespread or systematic attack against any civilian population

There are no Facts linked to this Issue.

I. B. 2 – Count 2 – Deportation or Deportation or forcible transfer of population Article 7(1)(d)

I. B. 2. a – The perpetrator deported or forcibly transferred, without ground permitted under international law, one or more persons to another State or location, by expulsion or other coercve acts

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There are no Facts linked to this Issue.

I. B. 2. b – Such person or persons were lawfully present in the area from which they were so deported or transferred

There are no Facts linked to this Issue.

I. B. 2. c – The perpetrator was aware of the factual circumstances that established the lawfulness of such presence

There are no Facts linked to this Issue.

I. B. 2. d – The conduct was committed as part of a widespread or systematic attack direct against a civilian population

There are no Facts linked to this Issue.

I. B. 2. e – The perpetrator new that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population

There are no Facts linked to this Issue.

I. B. 3 – Count 3 – Torture Article 7(1)(f)

I. B. 3. a – The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons

There are no Facts linked to this Issue.

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I. B. 3. b – Such person or persons were in the custody or under the control of the perpetrator

There are no Facts linked to this Issue.

I. B. 3. c – Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions

There are no Facts linked to this Issue.

I. B. 3. d – Intent

There are no Facts linked to this Issue.

I. B. 3. e – The conduct was committed as part of a widespread or systematic attack directed against a civilian population

There are no Facts linked to this Issue.

I. B. 3. f – The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civiliam population

There are no Facts linked to this Issue.

I. B. 4 – Count 4 – Persecution Article 7(1)(h)

I. B. 4. a – The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights

There are no Facts linked to this Issue.

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I. B. 4. b – The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such

There are no Facts linked to this Issue.

I. B. 4. c – Such targeting was based on political grounds

There are no Facts linked to this Issue.

I. B. 4. d – The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Staute or any crime within the jurisdiction of the Court

There are no Facts linked to this Issue.

I. B. 4. e – The conduct was committed as part of a widespread or systematic attack direct against a civilian population

There are no Facts linked to this Issue.

I. B. 4. f – The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civiliam population

There are no Facts linked to this Issue.

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MODES OF LIABILITY

II. A Indirect Co‐Perpetration Article 25(3)(a)

II. A. 1 – Existence of an agreement or common plan between two or more persons

There are no Facts linked to this Issue.

II. A. 2 – Coordinated essential contribution by each co‐perpetrator resulting in the realisation of the objective elements of the crime

Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes KEN‐OTP‐0047‐ KEN‐OTP‐ / text of a US State Department Cable from Nairobi embassy, leaked on Wikileaks / 0353 0047‐0353 at 0354 ʺ[...] The most persistent stories about militias have the Kalenjin community in Rift Valley Province as the best organized and most war‐like. Conventional wisdom explains this as due in part to the Kalenjinsʹ strong warrior/cattle rustling cultural tradition, but also to the fact that under the regime of Danial arap Moi / Daniel Arap MOI /, Kalenjins filled out the ranks of the Kenyan military in disproportionately high numbers, including in the officer corps. As many as 25‐30 senior Kalenjin officers lost their positions after the 2002 election of Mwai Kibaki / Mwai KIBAKI /, adding fuel to broader, longstanding grievances among the Kalenjin over unfair land allocations and economic and political marginalization at the hands of the Kikuyu.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes arming themselves to the teeth, according to some contacts. (Note: Another contact, however, indicates Kikuyu politicians are attempting to link Koech to Rift Valley violence, but that he is in fact clean. His role thus remains unclear. End note). A local contact reports that the Kalinjin [sic] forces are in firm alliance with the self proclaimed Sabaot Land Defense Force (SABAOT LAND DEFENSE FORCES), a clan‐based militia in the Mt. Elgon region of western Kenya established to defend ethnic Sabaots in land disputes that pre‐date the post‐electoral unrest. Indeed, there has been an increase in attacks, including cattle rustling and rape, by the SABAOT LAND DEFENSE FORCES in the Mount Elgon and Trans Nzoia areas on the homes of Kikuyu settlers. The SABAOT LAND DEFENSE FORCES has historically been well armed, and is reportedly well‐versed in obtaining weapons via Uganda.ʺ

II. A. 3 – Control over the organization

Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes KEN‐OTP‐0048‐ KEN‐OTP‐ ʺHis / Henry Kiprono KOSGEY / appointment as ODM‐K chairman, though on an interim basis, 0069 0048‐0069 at has doubtlessly bolstered the MPʹs political career and hoisted him to a strategic position within 0069‐0070 the new partyʹs leadership ranks. The development comes in the wake of Mr. Kosgeyʹs public anointment by Mr. Moi / Daniel Arap MOI / as the Kalenjin political elder and spokesperson.

This follows Mr. Moiʹs recent advice to members of his community to contact only Mr. KOSGEY or his Keiyo South counterpart, Mr. Nicholas Biwott / Nicholas BIWOTT /, ʹfor any adviceʹ. That Mr Kosgey has since shifted camp to ODM‐K, which the former President utterly loathes, raises eye‐ brows.

Closeness to Moi

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes

The former ministerʹs closeness to Mr Moi could well be a source of discomfort to some politicians within ODM‐K. The irresistible question that comes to mind is whether Mr Kosgey is a political mole within the new party and whether his mission is to eclipse Mr William Rutoʹs / William RUTO / rising star in the Rift Valley.

But Mr Ruto himself quickly rebuffs the allusion: ʹEclipse is not the word. We are working together with Mr Kosgey and our roles are quite complementary not competitive.ʹ Mr Moi has not only castigated Mr Rutoʹs presidential ambitions but has been consulting with Kalenjin politicians and elders alike to politically frustrate the Eldoret North MP.

ʹI am in ODM‐K and if there are colleagues who are uncomfortable with my relationship with Moi, I want to allay their fears. I am here to stay,ʹ says Mr Kosgey.

The MP was appointed ODK‐K boss during the partyʹs two‐day retreat at a Lukenya resort in Machakos district, following a decision restricting presidential aspirants from occupying the chairʹs seat since they were automatic members of the National Executive Council. And, curiously, the Sunday Nation has separately established that it is Mr Ruto who in fact proposed Mr Kosgeyʹs name ‐ a move that was apparently supported by all.ʺ KEN‐OTP‐0047‐ KEN‐OTP‐ ʺ[...] a weary‐looking Raila / Raila ODINGA / wound up an energy‐sapping three‐day campaign 0348 0047‐0348 blitz of North Eastem Province / North Eastern Province /. ʹThis region requires a Marshall Plan to address the poor infrastructure, buikj schools and abattoirs to uplift you from the squalor that has been forced upon you,ʺ Raila, unrelenting on his Majimbo catchphrase, told a huge rally at Garissa ASK showgrounds. ʺIgnore those against a devolved system of govemment as documented in the Bornas draft and hokj me to account if majimbo fails,ʺ he said. Orange Democratic Movement Pentagon member, Mr Najib Balala / Najib BALALA /, and party chaimian, Mr Henry Kosgey / Henry Kiprono KOSGEY /, also addressed the rally.ʺ KEN‐OTP‐0047‐ KEN‐OTP‐ / text of a US State Department Cable from Nairobi embassy, leaked on Wikileaks /

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes 0350 0047‐0350 at 0350 SUBJECT: KENYA: LINKING VISAS TO VIOLENCE Classified by: Ambassador Michael E. Ranneberger for reasons 1.4 (B) and (D). [...] To follow up on recent statements by Assistant Secretary Jendayi Frazer and the Ambassador indicating that the Department will review the visa eligibility of Kenyan politicians and businessmen suspected of supporting, inciting, or perpetrating violence in Kenya, Post delivered eight letters on February 5, signed by the Ambassador, to the following individuals: ‐ Richard Ngatia, businessman with Party of National Unity links suspected of funding Kikuyu youth groups engaged in violence. ‐ Njenga Karume / Njenga KARUME /, former minster with Party of National Unity ties suspected of having links to the MUNGIKI (Kikuyu mafia) and other related criminal organizations. ‐ John Mututho / John MUTUTHO /, Party of National Unity MP for Naivasha suspected of funding Kikuyu youth engaged in ethnic violence. ‐ Joshua Kullei / Joshua KULEI /, businessman with Orange Democratic Movement ties suspected of financing Kalenjin youth groups engaged in ethnic violence. ‐ Henry Kosgei / Henry Kiprono KOSGEY /, Orange Democratic Movement MP for Tinderet suspected of supporting Kalenjin youth groups engaged in violence. ‐ William ole Ntimana / William Ole NTIMAMA /, Orange Democratic Movement MP for Narok North, suspected of inciting inter‐ethnic violence. ‐ Zakayo Cheruiyuot / Zakayo CHERUIYOT /, Orange Democratic Movement MP for Kuresoi, suspected of inciting inter‐ethnic violence. ‐ Kabando wa Kabando / KABANDO wa KABANDO /, Orange Democratic Movement MP for Mukurweini, suspected of organizing and inciting inter‐ethnic violence.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes inter‐ethnic violence in Kenya are relevant to your and your familyʹs eligibility for U.S. visas. The U.S. Immigration and Nationality Act provides for the denial of visas to individuals for a variety of reasons. The U.S. Department of State reserves the right to make such a determination and reserves the right to suspend action on a visa application until such time that a determination of an individualʹs visa eligibility can be made. We request any and all information from you in writing detailing your efforts to promote an end to violence and the achievement of political and ethnic reconciliation in Kenya.

Sincerely yours, Michael E. Ranneberger Ambassador KEN‐OTP‐0047‐ KEN‐OTP‐ / text of a US State Department Cable from Nairobi embassy, leaked on Wikileaks / 0353 0047‐0353 at 0354 ʺ[...] The most persistent stories about militias have the Kalenjin community in Rift Valley Province as the best organized and most war‐like. Conventional wisdom explains this as due in part to the Kalenjinsʹ strong warrior/cattle rustling cultural tradition, but also to the fact that under the regime of Danial arap Moi / Daniel Arap MOI /, Kalenjins filled out the ranks of the Kenyan military in disproportionately high numbers, including in the officer corps. As many as 25‐30 senior Kalenjin officers lost their positions after the 2002 election of Mwai Kibaki / Mwai KIBAKI /, adding fuel to broader, longstanding grievances among the Kalenjin over unfair land allocations and economic and political marginalization at the hands of the Kikuyu.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes indicates Kikuyu politicians are attempting to link Koech to Rift Valley violence, but that he is in fact clean. His role thus remains unclear. End note). A local contact reports that the Kalinjin [sic] forces are in firm alliance with the self proclaimed Sabaot Land Defense Force (SABAOT LAND DEFENSE FORCES), a clan‐based militia in the Mt. Elgon region of western Kenya established to defend ethnic Sabaots in land disputes that pre‐date the post‐electoral unrest. Indeed, there has been an increase in attacks, including cattle rustling and rape, by the SABAOT LAND DEFENSE FORCES in the Mount Elgon and Trans Nzoia areas on the homes of Kikuyu settlers. The SABAOT LAND DEFENSE FORCES has historically been well armed, and is reportedly well‐versed in obtaining weapons via Uganda.ʺ

II. A. 4 – Organized and hierarchical apparatus of power

Closeness to Moi

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes The former ministerʹs closeness to Mr Moi could well be a source of discomfort to some politicians within ODM‐K. The irresistible question that comes to mind is whether Mr Kosgey is a political mole within the new party and whether his mission is to eclipse Mr William Rutoʹs / William RUTO / rising star in the Rift Valley.

ʹI am in ODM‐K and if there are colleagues who are uncomfortable with my relationship with Moi, I want to allay their fears. I am here to stay,ʹ says Mr Kosgey.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes 0352 SUBJECT: KENYA: MORE VISA WARNING LETTERS SENT [...]

Reftel reports on the February 5 conveyance of eight letters to Kenyan individuals warning the latter that indications they may be involved in supporting, inciting, and perpetrating inter‐ethnic violence in Kenya are relevant to their eligibility for U.S. visas.

[...] On February 8, Post conveyed letters to an additional five individuals, as follow. Text of the letters sent was similar or identical to the text reproduced reftel. ‐ Kihara Muttu, Deputy Chairman, Electoral Commission of Kenya, suspected of accepting bribes to fix election results tally at Electoral Commission in Kenya Headquarters. ‐ Jack Tumwa, Commissioner, Electoral Commission of Kenya, suspected of accepting bribes to fix election results tally at Electoral Commission in Kenya Headquarters. ‐Joseph Dena, [...] Commissioner, Electoral Commission of Kenya, suspected of accepting bribes to fix election results tally at Electoral Commission in Kenya Headquarters. ‐James Viscount Kimathi, former Member of Parliament with Party of National Unity ties, suspected of having links to MUNGIKI (Kikuyu mafia) and other related criminal organizations. ‐ Musa Cherutich SIRMA / Musa SIRMA /, former Member of Parliament with Orange Democratic Movement ties suspected of inciting and organizing inter‐ethnic violence in Rift Valley Province.

RANNEBERGER KEN‐OTP‐0047‐ KEN‐OTP‐ / text of a US State Department Cable from Nairobi embassy, leaked on Wikileaks / 0353 0047‐0353 at 0354 ʺ[...] The most persistent stories about militias have the Kalenjin community in Rift Valley Province as the best organized and most war‐like. Conventional wisdom explains this as due in part to the Kalenjinsʹ strong warrior/cattle rustling cultural tradition, but also to the fact that under the regime of Danial arap Moi / Daniel Arap MOI /, Kalenjins filled out the ranks of the Kenyan military in disproportionately high numbers, including in the officer corps. As many as 25‐30

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes senior Kalenjin officers lost their positions after the 2002 election of Mwai Kibaki / Mwai KIBAKI /, adding fuel to broader, longstanding grievances among the Kalenjin over unfair land allocations and economic and political marginalization at the hands of the Kikuyu.

[...] The combination of these grievances and the fact that many Kalenjins have military training and experience has created a potential scenario: That of a highly motivated and highly effective para‐military force that could make Rift Valley Province ungovernable if the peace talks fail. While the Embassy is unable to fully confirm these reports at this time, Kalenjin militias are purportedly organizing under the leadership of retired Kalenjin General John Koech / John KOECH /, and are arming themselves to the teeth, according to some contacts. (Note: Another contact, however, indicates Kikuyu politicians are attempting to link Koech to Rift Valley violence, but that he is in fact clean. His role thus remains unclear. End note). A local contact reports that the Kalinjin [sic] forces are in firm alliance with the self proclaimed Sabaot Land Defense Force (SABAOT LAND DEFENSE FORCES), a clan‐based militia in the Mt. Elgon region of western Kenya established to defend ethnic Sabaots in land disputes that pre‐date the post‐electoral unrest. Indeed, there has been an increase in attacks, including cattle rustling and rape, by the SABAOT LAND DEFENSE FORCES in the Mount Elgon and Trans Nzoia areas on the homes of Kikuyu settlers. The SABAOT LAND DEFENSE FORCES has historically been well armed, and is reportedly well‐versed in obtaining weapons via Uganda.ʺ

II. A. 5 – Execution of the crimes secured by almost automatic compliance by the subordinates with the orders given by the leader

There are no Facts linked to this Issue.

II. A. 6 – The suspect fulfils the subjective elements of the crime charged

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There are no Facts linked to this Issue.

II. A. 7 – The suspect and the other co‐perpetrators must all be mutually aware and mutually accept that implementing their common plan may result in the realization of the objective elements of the crime

There are no Facts linked to this Issue.

II. A. 8 – The suspect must be aware of the factual circumstances enabling him to exercise joint control over the crime

Closeness to Moi

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes But Mr Ruto himself quickly rebuffs the allusion: ʹEclipse is not the word. We are working together with Mr Kosgey and our roles are quite complementary not competitive.ʹ Mr Moi has not only castigated Mr Rutoʹs presidential ambitions but has been consulting with Kalenjin politicians and elders alike to politically frustrate the Eldoret North MP.

ʹI am in ODM‐K and if there are colleagues who are uncomfortable with my relationship with Moi, I want to allay their fears. I am here to stay,ʹ says Mr Kosgey.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes eight letters on February 5, signed by the Ambassador, to the following individuals: ‐ Richard Ngatia, businessman with Party of National Unity links suspected of funding Kikuyu youth groups engaged in violence. ‐ Njenga Karume / Njenga KARUME /, former minster with Party of National Unity ties suspected of having links to the MUNGIKI (Kikuyu mafia) and other related criminal organizations. ‐ John Mututho / John MUTUTHO /, Party of National Unity MP for Naivasha suspected of funding Kikuyu youth engaged in ethnic violence. ‐ Joshua Kullei / Joshua KULEI /, businessman with Orange Democratic Movement ties suspected of financing Kalenjin youth groups engaged in ethnic violence. ‐ Henry Kosgei / Henry Kiprono KOSGEY /, Orange Democratic Movement MP for Tinderet suspected of supporting Kalenjin youth groups engaged in violence. ‐ William ole Ntimana / William Ole NTIMAMA /, Orange Democratic Movement MP for Narok North, suspected of inciting inter‐ethnic violence. ‐ Zakayo Cheruiyuot / Zakayo CHERUIYOT /, Orange Democratic Movement MP for Kuresoi, suspected of inciting inter‐ethnic violence. ‐ Kabando wa Kabando / KABANDO wa KABANDO /, Orange Democratic Movement MP for Mukurweini, suspected of organizing and inciting inter‐ethnic violence.

[...] Text of the letter to the above eight individuals follows below: February 4, 2008 Dear (Name): This is to notify you that indications you may be involved in supporting, inciting, and perpetrating inter‐ethnic violence in Kenya are relevant to your and your familyʹs eligibility for U.S. visas. The U.S. Immigration and Nationality Act provides for the denial of visas to individuals for a variety of reasons. The U.S. Department of State reserves the right to make such a determination and reserves the right to suspend action on a visa application until such time that a determination of an individualʹs visa eligibility can be made.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes We request any and all information from you in writing detailing your efforts to promote an end to violence and the achievement of political and ethnic reconciliation in Kenya.

Sincerely yours, Michael E. Ranneberger Ambassador

II. B Common Purpose Article 25(3)(d)

II. B. 1 – A crime within the jurisdiction of the Court is attempted or committed by a group of persons acting with a common purpose

There are no Facts linked to this Issue.

II. B. 2 – The individual contributed to the crime in any way other than those set out in Article 25(3)(a) to (c) of the Statute

Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes KEN‐OTP‐0048‐ KEN‐OTP‐ [Following election Internal security minister John MICHUKI placed a gag order on the media. The 0094 0048‐0094 at Citizen news clip relates to the order and has some comments by a government spokes person 00:05:21 to Alfred MUTUA, information minister Alfred TUJU and Raila ODINGA providing their views on 00:05:32 the ban.] 00:05:49 to 00:06:20 00:05:21 00:06:21 to Raila ODINGA ʺ...there is no way we can reach the people of Kenya even if we want to tell the

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes 00:07:05 people to come there is no way to reach themʺ 00:05:32

[...] On February 8, Post conveyed letters to an additional five individuals, as follow. Text of the

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes letters sent was similar or identical to the text reproduced reftel. ‐ Kihara Muttu, Deputy Chairman, Electoral Commission of Kenya, suspected of accepting bribes to fix election results tally at Electoral Commission in Kenya Headquarters. ‐ Jack Tumwa, Commissioner, Electoral Commission of Kenya, suspected of accepting bribes to fix election results tally at Electoral Commission in Kenya Headquarters. ‐Joseph Dena, [...] Commissioner, Electoral Commission of Kenya, suspected of accepting bribes to fix election results tally at Electoral Commission in Kenya Headquarters. ‐James Viscount Kimathi, former Member of Parliament with Party of National Unity ties, suspected of having links to MUNGIKI (Kikuyu mafia) and other related criminal organizations. ‐ Musa Cherutich SIRMA / Musa SIRMA /, former Member of Parliament with Orange Democratic Movement ties suspected of inciting and organizing inter‐ethnic violence in Rift Valley Province.

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes organizing under the leadership of retired Kalenjin General John Koech / John KOECH /, and are arming themselves to the teeth, according to some contacts. (Note: Another contact, however, indicates Kikuyu politicians are attempting to link Koech to Rift Valley violence, but that he is in fact clean. His role thus remains unclear. End note). A local contact reports that the Kalinjin [sic] forces are in firm alliance with the self proclaimed Sabaot Land Defense Force (SABAOT LAND DEFENSE FORCES), a clan‐based militia in the Mt. Elgon region of western Kenya established to defend ethnic Sabaots in land disputes that pre‐date the post‐electoral unrest. Indeed, there has been an increase in attacks, including cattle rustling and rape, by the SABAOT LAND DEFENSE FORCES in the Mount Elgon and Trans Nzoia areas on the homes of Kikuyu settlers. The SABAOT LAND DEFENSE FORCES has historically been well armed, and is reportedly well‐versed in obtaining weapons via Uganda.ʺ

II. B. 3 – The contribution was intentional

Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes KEN‐OTP‐0048‐ KEN‐OTP‐ [Following election Internal security minister John MICHUKI placed a gag order on the media. The 0094 0048‐0094 at Citizen news clip relates to the order and has some comments by a government spokes person 00:05:21 to Alfred MUTUA, information minister Alfred TUJU and Raila ODINGA providing their views on 00:05:32 the ban.] 00:05:49 to 00:06:20 00:05:21 00:06:21 to Raila ODINGA ʺ...there is no way we can reach the people of Kenya even if we want to tell the 00:07:05 people to come there is no way to reach themʺ 00:05:32

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes 00:05:49 Government Spokes person Alfred MUTUA ʺThis is temporary measures we hope to lift in a day or two once the emotions get down, so it is not a ban on media or media freedom its just telling, its actually meant to have for vernacular radio especially not even television where people are calling in or inciting others to take up arms and burn the houses of their neighbours we are saying listen to the content first before you air it and you can air in 3 seconds later or 30 seconds later it is not telling you that you can not broadcast or that you cannot choose your contentʺ00:06:20

00:06:21 Minister for Information Raphael TUJU ʺNow you do not take 10 year olds and 14 year olds who cannot even vote to seriously I think it was a bit of incitement in fact we know the specific incitement came from one FM stations we dealt with that FM station, this particular announcer was removed from air because he had said if the announcement of the lection is other than the Orange Democratic Movement candidate then you know get out of your homes and go to you know and got to the streets and do what you can to stop this from happening. That a was a specific announcer in a tribal language and it caused a lot of mayhem but we did deal with that ʺ00:07:05 KEN‐OTP‐0047‐ KEN‐OTP‐ / text of a US State Department Cable from Nairobi embassy, leaked on Wikileaks / 0353 0047‐0353 at 0354 ʺ[...] The most persistent stories about militias have the Kalenjin community in Rift Valley Province as the best organized and most war‐like. Conventional wisdom explains this as due in part to the Kalenjinsʹ strong warrior/cattle rustling cultural tradition, but also to the fact that under the regime of Danial arap Moi / Daniel Arap MOI /, Kalenjins filled out the ranks of the Kenyan military in disproportionately high numbers, including in the officer corps. As many as 25‐30 senior Kalenjin officers lost their positions after the 2002 election of Mwai Kibaki / Mwai KIBAKI /, adding fuel to broader, longstanding grievances among the Kalenjin over unfair land allocations and economic and political marginalization at the hands of the Kikuyu.

[...] The combination of these grievances and the fact that many Kalenjins have military training and experience has created a potential scenario: That of a highly motivated and highly effective

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes para‐military force that could make Rift Valley Province ungovernable if the peace talks fail. While the Embassy is unable to fully confirm these reports at this time, Kalenjin militias are purportedly organizing under the leadership of retired Kalenjin General John Koech / John KOECH /, and are arming themselves to the teeth, according to some contacts. (Note: Another contact, however, indicates Kikuyu politicians are attempting to link Koech to Rift Valley violence, but that he is in fact clean. His role thus remains unclear. End note). A local contact reports that the Kalinjin [sic] forces are in firm alliance with the self proclaimed Sabaot Land Defense Force (SABAOT LAND DEFENSE FORCES), a clan‐based militia in the Mt. Elgon region of western Kenya established to defend ethnic Sabaots in land disputes that pre‐date the post‐electoral unrest. Indeed, there has been an increase in attacks, including cattle rustling and rape, by the SABAOT LAND DEFENSE FORCES in the Mount Elgon and Trans Nzoia areas on the homes of Kikuyu settlers. The SABAOT LAND DEFENSE FORCES has historically been well armed, and is reportedly well‐versed in obtaining weapons via Uganda.ʺ

II. B. 4 – The contribution was made with the aim of furthering the criminal activity or criminal purpose of the group

Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes KEN‐OTP‐0048‐ KEN‐OTP‐ [Following election Internal security minister John MICHUKI placed a gag order on the media. The 0094 0048‐0094 at Citizen news clip relates to the order and has some comments by a government spokes person 00:05:21 to Alfred MUTUA, information minister Alfred TUJU and Raila ODINGA providing their views on 00:05:32 the ban.] 00:05:49 to 00:06:20 00:05:21 00:06:21 to Raila ODINGA ʺ...there is no way we can reach the people of Kenya even if we want to tell the 00:07:05 people to come there is no way to reach themʺ

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes 00:05:32

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Source(s): Doc Source (at Fact Text ID/ERN & page: ERN) Witnes [...] The combination of these grievances and the fact that many Kalenjins have military training and experience has created a potential scenario: That of a highly motivated and highly effective para‐military force that could make Rift Valley Province ungovernable if the peace talks fail. While the Embassy is unable to fully confirm these reports at this time, Kalenjin militias are purportedly organizing under the leadership of retired Kalenjin General John Koech / John KOECH /, and are arming themselves to the teeth, according to some contacts. (Note: Another contact, however, indicates Kikuyu politicians are attempting to link Koech to Rift Valley violence, but that he is in fact clean. His role thus remains unclear. End note). A local contact reports that the Kalinjin [sic] forces are in firm alliance with the self proclaimed Sabaot Land Defense Force (SABAOT LAND DEFENSE FORCES), a clan‐based militia in the Mt. Elgon region of western Kenya established to defend ethnic Sabaots in land disputes that pre‐date the post‐electoral unrest. Indeed, there has been an increase in attacks, including cattle rustling and rape, by the SABAOT LAND DEFENSE FORCES in the Mount Elgon and Trans Nzoia areas on the homes of Kikuyu settlers. The SABAOT LAND DEFENSE FORCES has historically been well armed, and is reportedly well‐versed in obtaining weapons via Uganda.ʺ

II. B. 5 – The contribution was made in the knowledge of the intention of the group to commit the crime

There are no Facts linked to this Issue.