ICC-01/09-01/11-625-AnxB-Red 09-09-2013 1/64 EK T 0315 Original: English No.: ICC-01/09-01/11 Date: 9 September 2013 TRIAL CHAMBER V(A) Before: Judge Chile Eboe-Osuji, Presiding Judge Judge Olga Herrera Carbuccia Judge Robert Fremr SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR v. WILLIAM SAMOEI RUTO and JOSHUA ARAP SANG Public redacted version of Prosecution’s Updated Pre-Trial Brief Source: Office of the Prosecutor No. ICC-01/09-01/11 1/64 9 September 2013 ICC-01/09-01/11-625-AnxB-Red 09-09-2013 2/64 EK T Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Ms. Fatou Bensouda For William Samoei Ruto: Mr. James Stewart Mr. Karim Khan Mr. Anton Steynberg Mr. David Hooper Ms. Shyamala Alagendra For Joshua Arap Sang: Mr. Joseph Kipchumba Kigen-Katwa Mr. Silas Chekera Legal Representatives of the Victims Legal Representatives of the Applicants Mr. Wilfred Nderitu Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms. Paolina Massidda States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Mr. Herman von Hebel Deputy Registrar Mr. Didier Preira Victims and Witnesses Unit Detention Section Ms. Maria Luisa Martinod-Jacome Victims Participation and Reparations Others Section No. ICC-01/09-01/11 2/64 9 September 2013 ICC-01/09-01/11-625-AnxB-Red 09-09-2013 3/64 EK T I. Introduction 1. In accordance with the order of 9 July 2012 issued by Trial Chamber V (“the Chamber”),1 the Prosecution hereby files its Pre-Trial Brief, explaining the Prosecution’s case and core supporting evidence which it intends to rely on at trial. 2. The 2007 post-election violence (“PEV”) erupted in the Rift Valley against the backdrop of unresolved social and economic grievances.2 While a number of factors contributed to the violence, three main issues, strongly interconnected, were critical: 1) the politicization of ethnic associations by political parties during the Kenyan elections; and 2) perceived unfairness within the Kalenjin community regarding land and resource allocation;3 and 3) serious youth unemployment.4 3. The Prosecution alleges that the Accused William Samoei RUTO and Joshua Arap SANG intentionally exploited to their own advantage these deep-seated political, ethnic, social and economic issues during the 2007 electoral campaign. In a country with a history of violence surrounding elections, the Accused planned and organized the violence in an attempt to seize political power should they not succeed in the elections. They intended the attacks to occur in the manner and scale that they did and committed crimes in the process, to further their own aims. a) Kenya’s Provinces, Districts and Division 4. The Rift Valley is one of eight provinces in Kenya.5 Each province is subdivided into districts. In 2007, the Rift Valley was divided into 17 districts.6 5. In 2007, the Uasin Gishu District was divided into three parliamentary constituencies: Eldoret North, Eldoret East, and Eldoret South. Adjacent to the Uasin 1 [REDACTED]. 2 [REDACTED]. 3 [REDACTED]. 4 [REDACTED]. 5 [REDACTED]. 6 [REDACTED]. No. ICC-01/09-01/11 3/64 9 September 2013 ICC-01/09-01/11-625-AnxB-Red 09-09-2013 4/64 EK T Gishu District, the Nandi District was divided into four constituencies: Mosop; Engwen; Aldai, and Tinderet. 6. RUTO was elected the MP for Eldoret North in 1997 and 2002; in 2007 he was the incumbent MP candidate for this constituency.7 The crimes with which the Accused have been charged occurred in RUTO’s constituency and other constituencies located in Uasin Gishu and Nandi Districts in the Rift Valley. b) Ethnic composition of Kenya’s population 7. There are over 42 distinct ethnic groups in Kenya. The five largest ethnic groups are the Kikuyu, Luhya, Luo, Kamba, and Kalenjin.8 The largest ethnic group, the Kikuyu, make up just over 20% of the nation’s total population.9 The four remaining ethnic groups, the Luhya, the Luo, the Kamba and the Kalenjin each make up less than 15% of Kenya’s total population. The total population of the Kalenjin is more than 4,900,000 according to figures reported by the Kenyan Government in 2010.10 8. The Kalenjin share a common language and comprise the Nandi, Kipsigi, Tugen, Keiyo, Marakwet, Sabaot, Pokot and Terik subgroups. These subgroups are collectively recognized, by themselves and by other ethnic groups, as Kalenjin.11 9. Out of the five largest ethnic groups, the Kalenjin have historically been most prevalent in the Rift Valley. The aggregate population of the Uasin Gishua and Nandi Districts is approximately 1,600,000,12 a majority of whom are Kalenjin.13 A majority of the Kikuyu population arrived in the Rift Valley in two waves prior to President MOI taking office in 1978.14 7 For purposes of elections, constituencies are the electoral subdivisions, and do not follow district boundaries. 8 [REDACTED]. 9 [REDACTED]. 10 [REDACTED]. 11 [REDACTED]. 12 [REDACTED]. 13 [REDACTED]. 14 [REDACTED]. No. ICC-01/09-01/11 4/64 9 September 2013 ICC-01/09-01/11-625-AnxB-Red 09-09-2013 5/64 EK T 10. Members of other ethnic groups – most particularly Kikuyu – have migrated over time to the Rift Valley. Together, these migrations resulted in the growing cosmopolitan nature of various areas, including the greater Eldoret area, Kiambaa, Kisumu, Ndogo, Langas, Kimumu, Hurumu, Yamumbi, Turbo and Kapsabet, located in Uasin Gishu and Nandi Districts.15 The settlement of non-Kalenjin tribes in the Rift Valley has caused friction with Kalenjin tribes16 and other smaller tribes that have historically occupied the Rift Valley, with the perception that these newer groups are not fully integrated into regional society, and that they appropriated Kalenjin ancestral land.17 c) Politics and ethnicity 11. Kenyan politics is heavily influenced by ethnic loyalties and tribal alliances.18 From the 1990’s through the PEV period, many politicians have relied on and drawn support from their ethnically-based constituencies.19 The practice20 has left a majority of Kenyans with the perception that if a candidate from their ethnic group were to ascend to the Presidency, their ethnic group would benefit,21 through jobs, resources to their provinces, and contracts and other benefits to their businesses.22 d) Politics, land and the Rift Valley 12. Some Kalenjin in the Rift Valley resented the matter of non-Kalenjin ownership of ancestral land,23 which is rooted in the resettlement of Kikuyu from the 15 [REDACTED]. 16 Along with the Maasai (totalling 1.8% of the Kenyan population), Samburu (0.5%) and Turkana (1.3%), [REDACTED]. 17 [REDACTED]. 18 [REDACTED]. 19 [REDACTED]. 20 [REDACTED]. 21 [REDACTED]. 22 [REDACTED]. 23 [REDACTED]. No. ICC-01/09-01/11 5/64 9 September 2013 ICC-01/09-01/11-625-AnxB-Red 09-09-2013 6/64 EK T “White Highlands”24 in Central Province to the Rift Valley, onto traditionally Kalenjin pastoral land, in the years preceding independence.25 13. After independence in 1963, Jomo KENYATTA, a Kikuyu, became Kenya’s first President. He granted land, other resources and positions of economic and political power to his Kikuyu tribesmen.26 14. In 1978, Daniel arap MOI, a Kalenjin,27 became President, holding that position until Mwai KIBAKI’s election in 2002.28 MOI’s policies were perceived as benefiting Kalenjins with the replacement by Kalenjin of many Kenyatta-appointees in the KANU party.29 15. During 1992-1993, RUTO aligned with President MOI and KANU,30 saw how land and ethnicity issues could be invoked for political gain during the 1992 elections.31 Violence during that election resulted in approximately 1,500 people killed and over 300,000 displaced.32 16. In 2007, RUTO utilized much of the same rhetoric, and pursued his own objectives, through a similar strategy.33 17. In 2005, Kenya held a constitutional referendum that raised the issues of land ownership and whether to diffuse the power held by the executive branch of government. The Kikuyu and Kalenjin took opposing positions on the referendum.34 Prior to the referendum, KIBAKI, a Kikuyu, promised Raila ODINGA, a Luo, that he would diffuse power from the executive in exchange for support from ODINGA’s base, but, the constitutional draft he presented did not contain the promised changes. As a result, ODINGA, supported by the Kalenjin, Luos and other ethnic 24 [REDACTED]. 25 [REDACTED]. 26 [REDACTED]. 27 [REDACTED]. 28 [REDACTED]. 29 [REDACTED]. 30 In 1992, RUTO became the Treasurer for Youth for KANU ’92, [REDACTED]. 31 [REDACTED]. 32 [REDACTED]. 33 [REDACTED]. 34 [REDACTED]. No. ICC-01/09-01/11 6/64 9 September 2013 ICC-01/09-01/11-625-AnxB-Red 09-09-2013 7/64 EK T groups, organized the ODM party to oppose the referendum. It was defeated and KIBAKI and his government also lost much of the support he had in the 2002 elections.35 18. The issue of land was again prominent in the 2007 elections. RUTO exploited the determination of many Kalenjin to reclaim their ancestral land36 and their yearning for regional autonomy,37 and he capitalised on existing traditional Kalenjin groups to establish a network of like-minded Kalenjin associates (“the Network”) which intentionally began cultivating anti-Kikuyu sentiment.38 e) The political and ethnic composition of the 2007 elections 19. In 2007, the two main parties in the presidential race were the Party of National Unity (“PNU”) headed by the incumbent KIBAKI, and the ODM headed by ODINGA.39 20.