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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
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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
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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].
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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].
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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].
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“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].
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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. With 42 tribes comprising Kenya’s voting population, it was critical that these parties forge alliances with other ethnic constituencies. Prior to and during the 2007 election, the PNU was primarily supported by the Kikuyu, Kisii, Embu, Kamba and
Meru ethnic groups.40 Their geographical strongholds were the Nairobi area, and the
Central Province.41
21. ODM’s stronghold in the Rift Valley was based on the Kalenjin’s ancestral ties to the land.42 A majority of the youth in major towns also supported the ODM, including youth in Eldoret, Uasin Gishu District.43 After its success in opposing the
35 [REDACTED]. 36 [REDACTED]. 37 [REDACTED]. 38See section II. Organization-The Network and sub-section i. The existence of a common plan below; [REDACTED]. 39 [REDACTED]. 40 [REDACTED]. 41 [REDACTED]. 42 [REDACTED]. 43 [REDACTED].
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2005 referendum, the ODM campaigned in the Rift Valley on a majimbo44 platform that was largely driven by the ambitions of the Kalenjin and other tribes to, (a) control their provinces’ natural and other resources, and (b) to expel members of other tribes in order to reclaim land, jobs and property.45
f) The emergence of the Network and the 2007 elections in the Rift Valley
22. In 2007, the Kalenjin group formed the majority in 28 of 50 constituencies in the Rift Valley and accounted for 3.4 million of 14.3 million registered voters.46
23. By the time campaigning began, RUTO was the most influential Kalenjin politician in the Rift Valley.47 As early as June 2006, RUTO was acknowledged to be the single most important Kalenjin politician.48 He was seen by many as the reincarnation of the famous Nandi anti-colonial hero Koitalel Arap Samoei.49 RUTO also had the support of prominent local figures, including high ranking ODM officials, traditional elders, businessmen, and civil servants, all of whom reinforced his stature as the principal Kalenjin spokesman.50
24. As outlined in section II below, prior to the election RUTO began organizing tribal, military, media, financial and political leaders (the Network) with the purpose of forcibly expelling PNU supporters from the Rift Valley, in particular the Kikuyu,
Kamba, and Kisii population. RUTO and his Network strategized, planned, financed, provided weapons and transportation and made other logistical contributions to ensure that Kikuyu, Kamba and Kisii civilians were expelled from
44Majimboism is a notion of regional devolution – and a term loaded with meaning in the Kenyan vernacular. Since independence, majimboism has been invoked in the Rift Valley – but was marginalized by Jomo KENYATTA who believed in a strong, central government. Since MOI’s declaration of the Rift Valley as a “KANU-zone” in the 1990s, a radical version of majimboism emerged, consisting of the expulsion of non-indigenous peoples from the Rift Valley and the restoration of all ancestral lands to the Kalenjin. 45 [REDACTED]. 46 [REDACTED]. 47 [REDACTED]. 48 [REDACTED]. 49 [REDACTED]. 50 [REDACTED].
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the Rift Valley. The Network also targeted Kalenjin who sided with the PNU and non-Kalenjin tribes.51 RUTO and members of his Network publicly referred to the
Kikuyu as ‘weeds’ to be uprooted.52 Listeners understood that these statements urged that the Kikuyu must be expelled from the Rift Valley.53
25. From 2006 onward, the Network conducted meetings, rallies, fundraisers and other events to strategize and organize the PEV attacks. The Network utilised traditional Kalenjin war tactics to conduct the PEV, methods which were taught to
Kalenjin youth during their coming-of-age circumcision rituals.54
26. In 2007, as the election neared, RUTO increased the frequency of rallies and meetings throughout the Uasin Gishu and Nandi Districts, and hosted many of meetings at his Sugoi home, located in Uasin Gishu.55
27. At approximately 17:30 on 30 December 2007, the Electoral Commission of
Kenya (“ECK”) declared under contested circumstances that KIBAKI had won the presidential election.56 KIBAKI’s election triggered RUTO’s Network to execute their plan to permanently expel the perceived PNU supporters from the Rift Valley by whatever means necessary, including committing the crimes of murder, deportation or forcible transfer and persecution.
II. Organization – The Network
28. By 2007, RUTO established and headed a multi-faceted Network based on existing tribal structure and roles in Kalenjin society and including political, military, media, tribal and financial components. The Network had the necessary means for the purpose of committing criminal activities, namely to plan and implement the attack against PNU supporters in connection with the 2007 presidential elections and expel them from the Rift Valley.
51 [REDACTED]. 52 [REDACTED]. 53 [REDACTED]. 54 [REDACTED]. 55 [REDACTED]. 56 [REDACTED].
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1. Composition of the Network
i. Political
29. The political component of RUTO’s Network comprised ODM activists (such as Jackson KIBOR), MPs (such as Fred KAPONDI and Franklin BETT), and leadership of the ODM party.57 Henry KOSGEY collaborated with RUTO and was the Chairman of the ODM Party.58 Isaac MAIYO (another of RUTO’s collaborators) was the Chairperson for the Constituency Development Fund (“CDF”) for the
Eldoret North Constituency.59
ii. Military
30. RUTO designed a military component of the Network, with a chain of command and communications structure, which conducted training and coordinated implementation of the plan. RUTO appointed three commanders (all of them Kalenjin ex-security services) with overall operational responsibility for the
Rift Valley: Samson CHERAMBOS (Central Rift – a former commander of the
General Services Unit), General KOECH (North Rift – retired army general) and
Augustine CHERUIYOT (South Rift – a retired army general).60
31. The military Commanders would meet frequently with RUTO and other key members of the Network to discuss the ongoing preparations for attacks.61
32. Reporting to these military commanders were “Divisional Commanders”, who were responsible for commanding fighters in districts where there was a high concentration of Kikuyu. They were largely former members of the armed forces and police. These included Ishmael CHOGE (Kapsabet town and area), Jacob KATA
57 [REDACTED]. 58 [REDACTED]. 59 [REDACTED]. 60 [REDACTED]. 61 [REDACTED].
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(Nandi Hills town and area) and Major CHERUWON (Meteitei in Nandi District and
Timboroa in Uasin Gishu District).62
33. The military component of the Network undertook military training of
Kalenjin youths in order to prepare them for their participation in the attacks.63
34. RUTO coordinated the organization and implementation of the violence either personally or through associates and collaborators, such as Farouk KIBET or
Jackson KIBOR. These assistants were instrumental in the planning and implementation of the attacks.64 iii. Media
35. KASS FM actively promoted the ODM and RUTO in daily broadcasts on Lee
Ne Emet program promoting RUTO as the strong political leader of the Kalenjins.
RUTO effectively used KASS FM lay the groundwork for, coordinate and encourage the forcible eviction of PNU supporters from the Rift Valley. KASS FM had the political objective of putting Kalenjin politicians into power in the central government, in particular, by politically uniting the Kalenjin tribes to form a voting block against other tribes. In the build-up to the 2007 elections SANG continuously implored listeners to vote ODM and to unite behind RUTO as the Kalenjin leader who would restore the Kalenjins to a position of prominence in Kenya.65
36. KASS FM provided RUTO with a ready platform through which he could galvanize the Kalenjin community to implement his plan to expel the targeted communities from the Rift Valley.66 SANG broadcast anti-Kikuyu and anti-PNU rhetoric, described the Kikuyu as the enemy, accused Kalenjins who married non-
Kalenjins of contaminating the lineage and referred to Kalenjin PNU supporters as
62 [REDACTED]. 63 [REDACTED]. 64 [REDACTED]. 65 [REDACTED]. 66 [REDACTED].
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“self-seekers” and “traitors”.67 SANG told listeners to remain vigilant during the election as KIBAKI and the Kikuyu were going to rig the elections.68
37. In the planning phase, SANG mobilized members of the Network to attend the meetings held to organize and prepare for the attacks against the targeted communities.69 RUTO instructed crowds at rallies and meetings to listen to KASS FM for instructions.70 After KIBAKI was announced as the winner, SANG broadcast that
KIBAKI had rigged the election, there would be no peace because the election had been stolen, the Kikuyu were the enemy, and that the Kalenjin now had to fight to reclaim what had been stolen. SANG exhorted that the Kalenjin people needed to be ready for war, and that Kalenjin children would suffer because others controlled their properties.71 On 31 December 2007 SANG broadcast on KASS FM that the war had started and the men should go out and fight.72 SANG broadcast that listeners should listen to KASS FM only regarding the war.73 During the attacks SANG monitored the violence, broadcast updates on his show, and even rallied attackers to particular areas in need of reinforcements.74 SANG instructed listeners to burn properties in Eldoret belonging to non-Kalenjins by saying, “let’s not destroy our own”. SANG also broadcast in January 2008 that violence had started in Kisumu and that Kalenjin men should go there and join in. He extolled listeners to “carry out the job” and to “carry out the work”.75 iv. Tribal
38. RUTO used Kalenjin elders to provide community legitimacy to the ODM party as a Kalenjin entity, prepare Kalenjin youths for the impending attack, and
67 [REDACTED]. 68 [REDACTED]. 69 [REDACTED]. 70 [REDACTED]. 71 [REDACTED]. 72 [REDACTED]. 73 [REDACTED]. 74 [REDACTED]. 75 [REDACTED].
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implement the criminal plan to evict the non-Kalenjin/PNU supporters from the Rift
Valley.
39. Traditional Kalenjin elders endorsed and blessed RUTO as the “leader” in
June 2006.76 The elders enjoy significant standing and influence in the Kalenjin community; their views carry a great deal of weight and their decisions are binding on the community. The elders are rarely questioned or challenged.77
40. Prior to the PEV, the elders conducted the circumcision and oathing ceremonies of large numbers of youths in order to train them as warriors.78 The elders also supported the planning and perpetration of the violence by providing funding and recruiting youths to act as traditional warriors during the attacks,79 performing pre-war blessings on RUTO and his military commanders80 and transmitting RUTO’s orders to the Kalenjin youths prior to the attacks.81
41. Finally, the elders played a role in the cleansing of those youths who had participated in attacks. Kalenjin elders performed traditional Kalenjin cleansing ceremonies in early-January and May 2008 where youths who participated in attacks were absolved of the crimes they had committed during the PEV.82
v. Financial
42. RUTO recruited wealthy Kalenjin businessmen for financial support and funding for the PEV.83 Financial supporters included Karin BUSIENEI, Arap
MAINA, RUTO’s father-in-law LEMUNYU (all present at a meeting at RUTO’s house on 14 December 2007)84 and Mark TOO.85
76 [REDACTED]. 77 [REDACTED]. 78 [REDACTED]. 79 [REDACTED]. 80 [REDACTED]. 81 [REDACTED]. 82 [REDACTED]. 83 [REDACTED]. 84 [REDACTED]. 85 [REDACTED].
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43. In addition, RUTO received financial support particularly to pursue his political agenda, in particular to address Kalenjin grievances regarding land, from the EMO Foundation, a community-based organization created to mobilise and empower the Kalenjin community. The Foundation raised funds through donations from Kalenjin individuals (including the Kenyan diaspora) and businesses. Kalenjin elders mobilised their communities to support and donate to EMO.86
44. Collections were also made amongst Kalenjin businesses within the community to contribute to the violence.87 RUTO called on KASS FM and on the
EMO Foundation to collect funds from Kalenjins (including the diaspora abroad).88
2. The Network’s means to carry out the attacks
45. The Network had extensive means at its disposal with which to carry out the attacks. It was comprised of thousands of Kalenjin youths who participated in the perpetration of the attacks and numerous individuals who participated in the preparation.89 Furthermore, local leaders familiar with the geographic areas were selected to lead the youths in the attacks, each being responsible for a certain sector.90
46. KASS FM, and in particular SANG’s show Lee Ne Emet was utilized to disseminate the plan, and to mobilize and coordinate perpetrators during the attacks.91
47. Funding for the attacks was organized in order to purchase weapons, pay for logistics such as the purchasing of petrol, to pay individuals involved in the planning of the violence, and to pay fighters who would be perpetrating the attacks.
RUTO instituted a system of financial incentives to those participating in the violence with a reward promised for every Kikuyu killed.92
86 [REDACTED]. 87 [REDACTED]. 88 [REDACTED]. 89 [REDACTED]. 90 [REDACTED]. 91 [REDACTED]. 92 [REDACTED].
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48. RUTO organized the procurement of arms, ammunition, grenades, as well as traditional weapons such as bows and arrows. RUTO also provided flammable gas to burn the houses of perceived PNU supporters during the attacks.93
49. Members of the Network organized the transporting of the fighters by lorry to and between various locations, reinforcements, food provisions, and the supply of necessary materials, such as fuel.94
50. Kalenjin youths were trained in the use of bows and arrows during circumcision ceremonies in the forest.95 They were also trained in the use of firearms96 and techniques for burning houses.97
51. The Network used individuals familiar with the targeted areas to identify- in advance- houses and businesses belonging to Kikuyu or other PNU supporters.
These properties, as well as locations to be protected from attack, were marked on maps and lists that were provided in advance to the attackers.98 Additionally, roadblocks were erected during the attacks to identify the targeted communities.99
52. RUTO established a communications system between Network members and himself to facilitate and coordinate the attacks on the ground.100
3. Planning and preparation meetings and public ODM rallies
2006
53. The plan of attack was conceived gradually by RUTO and his associates and collaborators in a series of planning meetings starting in mid-2006 through to
January 2008, in RUTO’s private residence in SUGOI and other locations in Uasin
Gishu and Nandi Districts. To execute this plan, RUTO and others including SANG
93 [REDACTED]. 94 [REDACTED]. 95 [REDACTED]. 96 [REDACTED]. 97 [REDACTED]. 98 [REDACTED]. 99 [REDACTED]. 100 [REDACTED].
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utilized the Network capitalizing on existing entities in the Kalenjin community. By
December 2006, the Network consisted of pro-ODM political figures; media representatives, including SANG as a broadcaster on KASS FM; financiers; tribal elders; local leaders; and former members of the Kenyan police and armed services.
54. In addition to the planning meetings, RUTO and other Network members held a series of public ODM rallies in Uasin Gishu and Nandi Districts at which they conveyed their political message and laid the groundwork for their plan to evict the
PNU supporters from the Rift Valley. This was accomplished primarily through the use of derogatory language in reference to PNU supporters, the further inciting of hatred against them through the evocation of land grievances, and by warnings that without their vigilance the upcoming election would be rigged against the Kalenjin people.
55. In 2006 RUTO began holding meetings with Network members to plan the eviction of PNU supporters from the Rift Valley. These included one meeting in June
2006 at the Sirikwa Hotel in Eldoret101 and two meetings in June and August 2006 at
RUTO’s house in SUGOI. Discussed at these meeting was the necessity to recruit tribal members and security services personnel in order to help execute the plan.102
56. In November 2006 RUTO held a meeting at his Sugoi house with approximately 3,000 Kalenjin youths from across the Rift Valley, including from
Nandi and Kapsabet. RUTO told the youths that the Kikuyu had taken over the government and he called on them to support him in taking over and forming a new government, by force if necessary. He also said that he had been appointed Kalenjin leader by the elders so they must listen to him, that they must arm themselves with bows and arrows, and that if they paid attention to him then he would support them. Farouk KIBET (RUTO’s personal assistant) paid each of the youths 1,000
Ksh.103
101 [REDACTED]. 102 [REDACTED]. 103 [REDACTED].
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57. RUTO held another important planning meeting, to prepare for the upcoming violence, at his house in Sugoi on 30 December 2006. Prior to this meeting KASS FM broadcast an invitation for Kalenjijn to attend. Members of RUTO’s Network and close collaborators were present, including SANG, Franklin BETT and Jackson
KIBOR. Approximately 200 people participated, including Kalenjin politicians, elders and businessmen. Three regional military commanders were appointed, including Samson CHERAMBOS. RUTO produced maps of the Rift Valley that were distributed to the participants, which identified the highest concentration of Kikuyu,
Kambas and Kisiis and marked the targeted towns and locations including
Kapsabet, Turbo, Kiambaa, Kimumu and Nandi Hills. RUTO discussed procuring weapons (from Uganda and Sudan), and the financing of the attacks. RUTO further stated that recruitment of youths and former army members would be necessary.
Jackson KIBOR and others spoke about providing their lorries to transport warriors between locations for the attacks. RUTO instructed the participants to listen to KASS
FM for his orders.104
2007
58. No fewer than 10 ODM public rallies took place across the Rift Valley –
Eldoret,105 Turbo,106 Besiebor,107 Kapsabet,108 Kericho,109 Kuboji,110 Kipkaren,111 Nandi
Hills112 and Metetei113 – through November and December 2007 prior to the elections.
KASS FM announced and broadcast these rallies which drew in thousands of people.
104 [REDACTED]. 105 [REDACTED]. 106 [REDACTED]. 107 [REDACTED]. 108 [REDACTED]. 109 [REDACTED]. 110 [REDACTED]. 111 [REDACTED]. 112 [REDACTED]. 113 [REDACTED].
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59. Along with RUTO, SANG,114 Samson CHERAMBOS,115 Augustine
CHERUIYOT,116 General KOECH,117 Henry KOSGEY,118 and Ishmael CHOGE, among other members and/or collaborators of the Network, attended rallies.119 At these ODM rallies, RUTO addressed the crowds passionately and incited them, declaring either directly or through parables that non-ODM supporters should be evicted from the Rift Valley. RUTO’s comments were often very well received by the crowds.120 RUTO used parables, stating that the Kikuyu were birds whose nests needed to be destroyed, weeds growing near Kalenjin houses which needed to be removed,121 or witches who should be burned.122 He said further that if the ODM won the elections they would “uproot the tree stumps that are among the people” and they would “get rid of and send back to where they came from” all the people who had taken over local farms and businesses.123 RUTO also stigmatized Kalenjins who failed to support the ODM branding them as traitors to the Kalenjin community.124
60. RUTO also instructed that, “If KIBAKI is announced the winner, you should barricade the roads, do yelling, destroy property, and kill Kikuyu”.125 He told the crowds that he had bought weapons with which to fight the Kikuyu and the KIBAKI administration,126 that “the time has come” to “do what we have planned”.127 He reminded the crowds that he was the spokesman of the Kalenjin people and he
114 [REDACTED]. 115 [REDACTED]. 116 [REDACTED]. 117 [REDACTED]. 118 [REDACTED]. 119 [REDACTED]. 120 [REDACTED]. 121 [REDACTED]. 122 [REDACTED]. 123 [REDACTED]. 124 [REDACTED]. 125 [REDACTED]. 126 [REDACTED]. 127 [REDACTED].
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wanted those present to do the job he had already told them to do.128 He reiterated that the orders would be announced on KASS FM, and those who that did not do as instructed would be punished.129 At Kipkaren on 6 December 2007 RUTO announced that there would be a meeting at his house on 14 December and told the crowds to attend.130
61. As well as the public ODM rallies, RUTO continued holding several planning and preparation meetings at which the plan was finalized and put into place.
62. On 2 September 2007, a meeting was held at the Sirikwa Hotel in Eldoret during “Kalenjin Night” which was publicized and broadcast by KASS FM and the
EMO Foundation. Several hundred people attended. SANG acted as the Master of
Ceremonies and told those present to vote for their own people. RUTO addressed the crowd stating that the elections were going to be rigged and that the Kalenjins were ready with money, weapons and warriors. RUTO also announced another meeting for 2 November, which he said all Kalenjins must attend. Jackson KIBOR informed the crowd that preparations had been made, including the procurement of guns. The military commanders were also present. CHERUIYOT addressed the crowd and confirmed that they had obtained weapons. Reverend KOSGEI spoke, telling the crowd that God approved of expelling the Kikuyu, Kambas and Kisiis from the Rift Valley because it was not their land. Whenever sensitive issues regarding the plans were discussed, the KASS FM broadcast would be cut so that the
Government would not hear it and intervene.131
63. A further closed-door meeting of around 50 people then took place at the hotel with RUTO, the military commanders (CHERUIYOT, CHERAMBOS and
KOECH), a number of elders, EMO foundation members and KASS FM officials.
RUTO discussed the readiness of the Kalenjin youths to fight. It was planned that
KOECH would lead the group of fighters for the South Rift, CHERAMBOS the
128 [REDACTED]. 129 [REDACTED]. 130 [REDACTED]. 131 [REDACTED].
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Central Rift, and CHERUYIOT the North Rift. Financing for training, weapons and fuel was discussed.132
64. On 15 October 2007, at a public meeting at the secondary school in Kaptabee in Turbo Division, RUTO told the crowd that the Kikuyu had to be evicted by force from the Eldoret North Constituency and from the Rift Valley generally. RUTO exhorted that the Kikuyu were the enemies of all communities in Kenya, that the
Kikuyu should no longer “reign over” the Kalenjins, and that the only thing to do was to “kill them and evict them from the Rift Valley”.133
65. On 20 October 2007 RUTO held another planning meeting at his Sugoi home, attended by approximately 600 people, Network members and supporters from across the Rift Valley. RUTO addressed the crowd. He stated that the Kikuyu did not know how dangerous it was for them in the Rift Valley, they must go, and they would be going home whether they liked it or not; the Kikuyu were thieves who had taken all the farms, had harassed the Kalenjins and who were known as murderers; the Kalenjins needed to chase the Kikuyu and take back their land in the Rift Valley; the Kalenjins were ready for war, they had financial backing, and guns would be obtained and distributed to the youths. RUTO also provided money to the various community leaders to distribute amongst the attendees.134
66. On 2 November 2007, RUTO held yet another planning meeting and at his
Sugoi house, attended by over 2,000 people including SANG and several Network members such as Jackson KIBOR, General KOECH, Samson CHERAMBOS and
Augustine CHERUIYOT. The purpose of the meeting was to distribute weapons and give further instructions in preparation for the attacks. RUTO told the attendees that the elections would be rigged and they had to fight the Kikuyu, Kamba and Kisii in order to protect their community.135 RUTO said that the Kikuyu had taken over the land in the Rift Valley and all the positions in the government. He stated that the
132 [REDACTED]. 133 [REDACTED]. 134 [REDACTED]. 135 [REDACTED].
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Kalenjin needed to be prepared to protect their land and to “keep out the foreigners”. He stated that one tribe could not defeat 41 tribes.136 RUTO then produced two cartons containing guns and symbolically handed a gun and ammunition to each of the three commanders. A traditional elder blessed the weapons by sprinkling blood on them. RUTO told the crowd that his “other name was SAMOEI” (a reference to the Kalenjin leader killed fighting British colonial forces in 1905) and that he was going to “lead the fight”. RUTO told the crowd to attend a rally at Kipkarren on 6 December, as well as another meeting at his house on 14 December.137
67. On 20 November 2007 at a public meeting at Besiebor Primary School, RUTO addressed the crowd holding a toy hammer, telling them that they needed to walk with a hammer and a matchbox so they can demolish the houses of the Kikuyu and then set them alight. He instructed the crowd that he did not want any “stains”
(“madoadoa”). RUTO told the crowd that when the time came he would tell them what to do.138
68. Other planning meetings in late 2007 and early 2008, attended by RUTO or
Network members acting on his behalf took place in Kericho,139 at Farouk KIBET’s house,140 in Bakule,141 at Jackson KIBOR’s house,142 and at the Elgon Estate.143
Network members who attended these meetings included Augustine
CHERUIYOT,144 Farouk KIBET145, Jackson KIBOR,146 Isaac MAIYO,147 and Lucas
SANG (who would later lead attackers in Kimumu).148 They discussed the procuring
136 [REDACTED]. 137 [REDACTED]. 138 [REDACTED]. 139 [REDACTED]. 140 [REDACTED]. 141 [REDACTED]. 142 [REDACTED]. 143 [REDACTED]. 144 [REDACTED]. 145 [REDACTED]. 146 [REDACTED]. 147 [REDACTED]. 148 [REDACTED].
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of weapons, the recruitment, training and payment of Kalenjin youths, division of geographic responsibilities, the use of roadblocks, locations to be attacked, and that the attackers must wait for RUTO’s go-ahead before launching their war.
69. During November 2007 Kalenjin youths from across the Rift Valley were transported to Mboronjo close to Ziwa for weapons training. The training site was owned by a Kalenjin elder (named MUZURI). An ex-army officer (named Mika Arap
BILE) attended the training. The training included the use of bows and arrows, how best to burn down houses, and how not to leave any traces of evidence. The youths were paid 2,500 Ksh, with the funds coming from RUTO. BILE told the youths that they should not disappoint RUTO as he was paying a lot of money to defend the
Kalenjin community. The youths also took an oath of secrecy.149
70. On 23 November 2007, RUTO, approximately 100 prominent Kalenjin community members, and approximately 3,000 Kalenjin youths fathered at the farm of wealthy businessman Mark TOO, near Kimuri. RUTO addressed the crowd and stated that the youth should be taken care of and if there is any shortage of money he should be informed. Members of this group of youths attacked the Kiambaa church on 1 January 2008.150
71. In December 2007, a traditional circumcision ceremony and training for
Kalenjin youths took place in Kapchumba (near Huruma). This ceremony and training lasted throughout December.151 Another circumcision ceremony also took place at Chandoni in the forest. Approximately 10,000 people attended this month- long ceremony and training. These youths returned from this ceremony initiated as warriors ready to fight.152
72. Furthermore, during December 2007 eight meetings took place, mostly at
RUTO’s house in Sugoi, for final planning and preparations to implement the attacks in the event of a PNU victory in the elections.
149 [REDACTED]. 150 [REDACTED]. 151 [REDACTED]. 152 [REDACTED].
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73. On 6 December 2007 a meeting held at a property owned by Henry KOSGEY at Kapngetuny location, Nandi Hills was attended by RUTO, members of the
Network and other community leaders from the Rift Valley. The speakers proclaimed that there were too many Kikuyu and Kisii in the Rift Valley and that they should be removed; KIBAKI was going to steal the election; the Kalenjin people needed to take back their land from the Kikuyu; and if necessary blood would be shed to achieve this. They discussed the need to identify and attack only the properties that belonged to Kikuyu and they discussed financing.153
74. Immediately afterwards another meeting then took place with a larger group of participants at the house of the military commander Samson CHERAMBOS in
Kesokan Village, Aldai constituency, in the Nandi District. RUTO and KOSGEY were present again as were the other military commanders Augustine CHERUIYOT and General KOECH. Ishamel CHOGE and Abdi KETER were also present, both later involved in the attack on Kapsabet. RUTO, CHERAMBOS and KOSGEY discussed the need to train and arm the Kalenjin youths, to provide financing to pay them, and to transport them to the locations to be attacked. RUTO placed
CHERAMBOS in charge of training the youths. RUTO hailed the participants as
“heroes”. He reported that he had already obtained many weapons but needed to procure more and that he would obtain further arms from Fred KAPONDI in Mount
Elgon. RUTO stated that another meeting would take place on 14 December for further preparations with the youths.154
75. The 14 December 2007 meeting took place as scheduled at RUTO’s home in
Sugoi. Several thousand attended, including SANG, several other members of
RUTO’s Network and numerous Kalenjin youths who had been invited to the meeting. Farouk KIBET and Joshua SANG were the Masters of Ceremony. RUTO addressed the crowd stating that, “the Kikuyus must be evicted from the Rift Valley because they cannot support a person from a different community.” RUTO also told
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the crowd “It’s a big day. It is now Kenyans versus Kikuyus. We will make sure that we wage war against these people …We will do destruction…Destruction of property. You will kill and displace.”155 RUTO led those present in taking an oath and those present were blessed with blood by a traditional Kalenjin elder. Farouk
KIBET and various other individuals paid each of the youths between 300 and 400
Ksh for attending.156 RUTO told all of the participants to be on standby and that they would be told when to implement the plan to evict the Kikuyu.157
76. RUTO held a smaller meeting inside his house, attended by approximately 60 people, wherein RUTO produced boxes containing guns, ammunition and grenades.
RUTO distributed the guns, ammunition and grenades to military personnel allocating them by the districts which they represented. RUTO explained that further weapons would be provided in due course, however, he stated that there were not enough guns for everybody and so bows and arrows would also have to be used. He told the crowd that the fate of the community was in their hands. RUTO placed
Augustine CHERUIYOT in charge of operations in the North Rift region, Samson
CHERAMBOS for operations in Central Rift and General KOECH for South Rift.
Those present at this smaller meeting were paid 3,000 to 4,000 Ksh for ex-soldiers and 400 Ksh for non-military individuals.158 RUTO announced that there would be rewards of 50,000 Ksh for every Kikuyu killed and 100,000 Ksh for each house destroyed.159 In addition, RUTO told the participants to burn down any building where people could gather. He stated, “A snake is a snake. So even if the women run to the church, you go there and do not spare them. Do not respect these people in churches as in 1992.”160 Finally, RUTO told those present that there would be a further meeting at his house on 22 December.161
155 [REDACTED]. 156 [REDACTED]. 157 [REDACTED]. 158 [REDACTED]. 159 [REDACTED]. 160 [REDACTED]. 161 [REDACTED].
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77. The Network held another meeting on 14 December 2007 at the house of
Provincial Commissioner MBERIA, attended by approximately 60 people including
RUTO, KOSGEY and other members of the Network, such as elders and the military commanders. RUTO discussed the procurement of weapons, including materials with which to make bows and arrows. RUTO also stated that he would be obtaining arms from Fred KAPONDI, the firearms would be used by ex-soldiers only and
CHERAMBOS would instruct them. CHERAMBOS gave a demonstration on using grenades. Those who did not know how to use firearms were instructed to use bows and arrows.162
78. RUTO stated that roadblocks should be organized and put CHERAMBOS in charge of this effort. RUTO said that the Kikuyu and Kisiis would be forced to leave.
The military commanders reported on their preparations for attacks. Ishmael
CHOGE reported on his readiness regarding the identification of specific Kikuyu- owned properties in Kapsabet. KOSGEY reported on financing for the attacks. All the participants were then paid and took an oath of secrecy at this meeting.163
79. On 16 December 2007 RUTO convened a meeting at the house of Samson
CHERAMBOS, his military leader, which was attended by Network members and other Kalenjin community leaders. RUTO confirmed that he had procured arms, but said that “most of you are going to use bows and arrows. Only if the war gets heavy, the guns will be used.” RUTO told those present that the materials for the bows and arrows were at KATA’s hardware store in Nandi Hills and were ready for collection.
They also discussed transport, finance, logistics, and the grouping of the attackers into units under the authority of the Divisional Commanders.164 The Divisional
Commanders reported on planning, preparation and training.165 They discussed the use of SANG’s radio show (Lee Ne Emet) on KASS FM to mobilise and coordinate the attackers, explaining that proverbs and code words understood only by Kalenjins
162 [REDACTED]. 163 [REDACTED]. 164 [REDACTED]. 165 [REDACTED].
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would be used to inform Kalenjin-speaking listeners where to go and who to attack, and that pre-approved callers, including Mica RUTO (a subordinate of RUTO) would telephone in to the station to spread propaganda (anti-Kikuyu hate speech) and provide information from the ground.166 Finally, it was announced that overall military responsibility had been assigned to the military commanders, namely
General KOECH, Augustine CHERUIYOT and Samson CHERAMBOS.167
80. RUTO held a sixth planning meeting on 22 December 2007 at his house in
Sugoi. This meeting was attended by several hundred people, including members of
RUTO’s Network, such as Franklin BETT, Kipkalia KONES, Fred KAPONDI, David
KOECH, Augustine CHERUYIOT and Farouk KIBET. RUTO told the assembled participants, again, that the elections would be rigged and stolen by KIBAKI. RUTO stated that he had purchased weapons from Uganda, Sudan and Mount Elgon.
KIBET and others then retrieved guns and grenades from the house and distributed them to ex-soldiers present at the meeting. RUTO told the crowd they needed to be ready to defend their community; one witness present explains that this meant they needed to arm themselves with any weapon available, including bows and arrows.
Ex-soldiers in the crowd were told to leave their contact details. All of the participants received between 1,000 and 5,000 Ksh for attending this meeting.168
81. On 23 December 2007 a meeting took place at RUTO’s house in Sugoi attended by approximately 500 people including RUTO, SANG and other members of the Network (including KIBET, Major SEII, KAPONDI, KIBOR and
CHERAMBOS), hundreds of youths and prominent local Kalenjin representatives from across the Rift Valley. The plan was finalized to evict the Kikuyu if the PNU won the election. KIBET told the crowd that the Kikuyu were going to steal the vote and that when this happened they needed to be ready to evict the Kikuyu from the
Rift Valley. RUTO stated that funds were ready for transportation and for payments
166 [REDACTED]. 167 [REDACTED]. 168 [REDACTED].
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to the youths for participating. Plans were also made to punish any Kalenjin PNU supporters. Each of the youths was paid 500 Ksh for attending.169
82. During the last week of December 2007 Jackson KIBOR and Network members acting on behalf of RUTO purchased arms (pistols and rifles) to be used in the violence.170
83. On 26 December 2007, further to allegations made by SANG on KASS FM that pre-marked ballots had been transported to Eldoret, approximately 300 ODM supporters participated in a demonstration at the police station in Komoro (near to the Brookside Dairy). RUTO was present (with Farouk KIBET) and addressed the crowd asking “Should the Kikuyu go or stay?” to which the crowd chanted in response, “they should go”. As the crowd started to move from the police station to a nearby dairy, RUTO addressed it again, “There are 41 tribes supporting Okwamba
[ODINGA] and only one tribe, the Kikuyu, supporting Kibaki. What shall we do with them?” RUTO then went on to tell the crowd, “I am assuring you that we will take them back to Otaya in Nyeri.” Further, RUTO stated that the PNU were trying to steal the vote and so, “we will do to [the PNU] what we do to witches”; traditional
Kalenjin culture dictates that witches be burned to death.171
84. On 26 December 2007 a final planning meeting took place at the farm of businessman Mark TOO near Kimuri with the same group of approximately 3,000
Kalenjin youths who attended at this location on 23 November. Kalenjin elders were also present and administered a blessing and an oath to the youths, who were told that they would not be cursed if they were to shed any blood. The youths’ toenails were painted red so as to identify themselves. Mark TOO made a telephone call to
RUTO stating that he needed money to be sent to pay the youths “according to the work they do”. Members of this group of youths attacked the Kiambaa church on 1
January 2008.172
169 [REDACTED]. 170 [REDACTED]. 171 [REDACTED]. 172 [REDACTED].
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Announcement of the election results
85. Once the elections took place and it became clear that KIBAKI and the PNU had won the vote, RUTO through his associates, ordered the members of his
Network to launch the attacks and implement the plan of forcibly evicting the PNU supporters from the Rift Valley. This message was communicated to those perpetrating the attacks by RUTO and other Network members (including SANG) through a number of further meetings.
86. On 30 December 2007 over 1,000 local Kalenjin men and youths were summoned to a meeting at the Besiebor Trading Centre, next door to Turbo. Several elders were present and Christopher Kitino KISORIO, a leading Kalenjin elder, told those assembled that he had received a message from RUTO that the election had been rigged, the war had started and it was now time to attack the Kikuyu for stealing the vote, in particular in Turbo. KIBET echoed that he had a message from
RUTO that now was the time to attack the Kikuyu and evict them from the Rift
Valley.173
87. Those present were then divided into two groups: those with guns, and those with bows and arrows. Others were assigned tasks such as establishing roadblocks, defending Kalenjin women and children, or surveillance.174
88. After the announcement of the election results, Joseph NABEI (one of RUTO’s campaigners) called a meeting in Bronjo. Final preparations were made for the attacks on the Kikuyu, in particular at Moi’s Bridge near Turbo and Mukunga.
Hundreds of Kalenjin youths were present at these meetings. NABEI told those present “you have heard the results – you know it was stolen – we have to make sure that the Kikuyu are not here”, and made the Kalenjin war cry, which is a call to arms and mobilization. Napthtali MAIYO (another of RUTO’s campaigners) told the assembled youths that now they had seen the results they needed to evict the
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Kikuyu from the Rift Valley and burn their houses. The crowd was told that they must return the next day.175 Those present, approximately 400 people, returned the next morning to Bronjo. Instructions on how the attacks were to be conducted took place, including on Moi’s Bridge and Mukunga.176
89. After the announcement of the election results, simultaneous meetings were also called in Kuinet, ZiwaSirikwa and MitiMoja, attended by a number of Network members for the purpose of commencing the attacks against PNU supporters in
Eldoret, Turbo and Ziwa. Several hundred people were present at ZiwaSirikwa, including KIBOR, KIBET, KAPONDI and Lucas SANG KAPONDI undertook to collect more weapons. The crowd was asked to each contribute some money for weapons and though not present RUTO had already reportedly donated 200,000
Ksh. Those present were divided into units, each with a designated geographic area to attack, including Eldoret, Turbo and Ziwa.177
90. Also on 31 December 2007 at the farm of businessman Mark TOO near
Kimuri, approximately 3,000 Kalenjin youths who attended at this location on 23
November and 26 December gathered. Members of this group of youths attacked the
Kiambaa Church the next day, including Steven Chamalan LETING, Emmanuel
BOR, Kimei BOR as well as a youth called BROWN.178
91. Those present at Besiebor reassembled on the morning of 31 December 2007.
Farouk KIBET produced gas cylinders from his car and stated that they were to be used for burning the houses of the Kikuyus.179
92. On 6 January 2008 at a meeting at Teresia Forest in Mosop, North Nandi district, Kalenjin warriors were gathered to greet RUTO. KIBET and Philip MUREY presented the warriors to RUTO. MUREY told RUTO, “These are our brave men who have fought very hard so we need to assist them.” RUTO replied “I know that
175 [REDACTED]. 176 [REDACTED]. 177 [REDACTED].
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the Kalenjin warriors are very brave and have fought so hard so I will continue to assist you.” RUTO handed approximately 2 million Ksh to MUREY, saying it was to help and thank the fighters for their work.180
93. Finally, in May 2008 a “cleansing” ceremony took place at Nabkoi Forest for the youths who had participated in the PEV. This is a traditional ritual performed by
Kalenjin elders to absolve warriors of any sins they may have committed during war, in particular the killing of non-warriors. The ceremony was attended by approximately 3,000 people coming from across the Rift Valley. The youths
(including those who had participated in attacks on Ziwa and Turbo) were absolved of the killing, injury and destruction which they performed during the violence, so as not to be cursed in life. Kalenjin elders performed this ceremony according to custom. Farouk KIBET was present and told those assembled that he was RUTO’s representative; he said that RUTO was impressed with how the Kalenjin people had voted as a bloc and how they had united to evict the Kikuyu so that the Kalenjins could now take over the economy. KIBET then distributed money from RUTO to the youths who had participated in the attacks; some of the youths were displeased with the 300 Ksh that they each received.181
III. Mode of Liability
A. RUTO’s criminal responsibility
94. RUTO is criminally responsible as an indirect co-perpetrator with others pursuant to Article 25(3)(a) of the Statute, for crimes against humanity as defined in
Article 7 of the Statute.
a) Legal test
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95. For reasons outlined in a previous filing,182 the Prosecution submits the test for indirect co-perpetration under Article 25(3)(a) requires the following elements: (i) the existence of a common plan or agreement between two or more persons, including the accused; (ii) the accused made a substantial contribution, which, together with the contributions of other perpetrators, resulted in the fulfillment of the material elements of the crime; (iii) the existence of an organized and hierarchical apparatus of power; (iv) the accused had the ability to cause the organization to contribute to the crime; (v) the organization was composed of “fungible individuals” capable of replacement by others; and (vi) the accused acted with intent and had the requisite knowledge.
96. Whether the Trial Chamber decides to apply this test or that articulated by the
Pre-Trial Chamber,183 the anticipated evidence at trial will satisfy both tests.
b) Objective elements
i. The existence of a common plan184
97. RUTO, together with other key members of the Network devised a common plan that was aimed at targeting members of the civilian population perceived to be or actually supporting the PNU in order to punish and expel them from the Rift
Valley.185 This plan was driven by political goals to gain power and create a uniform voting block in the Rift Valley that would support Kalenjin interests.186
98. Following the position taken by the Kikuyu, Kamba and Kisii tribes in the constitutional referendum of 2005,187 RUTO, and others called upon the Kalenjin
182 [REDACTED]. 183 [REDACTED]. 184 Sub-section ii. The Accused’s individual contributions is incorporated by reference. 185 [REDACTED]. 186 [REDACTED]. 187 [REDACTED].
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community through KASS FM radio in 2006 to unite and strategize a plan to ‘uproot the weeds’, in reference to those tribes siding with the PNU.188
99. In his acceptance speech during his crowning ceremony in June 2006 as the new Kalenjin leader, RUTO stated: “It is now Kenyans versus Kikuyu” as the
Kikuyu were perceived as being the largest tribe supporting the PNU.189 He repeatedly used this slogan throughout the planning period to encourage the youth to wipe out the targeted communities.190
100. Capitalizing on historical grievances rooted in the Kalenjin community’s claims to ancestral land in the Rift Valley, RUTO garnered support from the Kalenjin community including (1) ODM political representatives (MPs and Councilors), (2) members of the media including SANG, who used KASS FM to incite and coordinate the PEV, (3) financial contributors, including businessmen, (4) tribal leaders including Elders, and (5) police and military personnel.191
101. After setting the stage for his plan, RUTO relied on his position as the
Kalenjin leader and took steps, with other key members of the Network, to shape the plan and put it into action. To that end, RUTO hosted and participated in planning meetings, where the plan was articulated and measures were taken for its implementation.192
102. These meetings had a clear objective “to plan for war” against the Kikuyu,
Kisii and Kamba.193 This objective was set unequivocally from the very beginning,194reiterated throughout the planning period,195 and materialized in multiple attacks against the targeted communities.196
188 [REDACTED]. 189 [REDACTED]. 190 For instance, in the 23 July 2006 meeting concerning EMO – KASS FM merger. [REDACTED]. 191 [REDACTED]. 192 See sub-section 3. Planning and preparation meetings and public ODM rallies. 193 Ibid. [REDACTED]. 194 Ibid. [REDACTED]. 195 Ibid. 196 See Section V. Crimes.
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103. Several months before the elections, RUTO claimed that the 2007 elections would be rigged and instructed his subordinates to organize themselves to be ready to implement the plan and expel the targeted communities.197
104. At these preparatory meetings and events,198 RUTO, and other key members of the Network: (1) appointed commanders and divisional commanders responsible for the operations on the ground and assigned them specific geographical areas to control,199 (2) produced maps marking out the areas most densely inhabited by perceived PNU supporters, and identifying particular houses and businesses to be targeted,200 (3) purchased weapons and material to produce crude weapons and planned their storage and distribution,201 (4) planned the transportation of the perpetrators to and from target locations and other related logistics,202 (5) established a stipendiary scheme and rewarding mechanism to motivate the perpetrators to kill and displace persons belonging to the targeted communities and destroy their properties,203 (6) identified callers for future KASS FM broadcasts,204
(7)communicated to participants the plans to attack other areas and the progress of attacks,205 and (8) compensated participants for attending meetings or events.206
105. In a community where rituals and tribal traditions are a source of legitimacy, the Network relied on traditional elders to legitimize the plan and impose unquestionable compliance from the community. In planning meetings, rituals were performed and verses from the Old Testament were recited to portray the plan to evict the targeted communities as a godly objective.207 Subsequent cleansing
197 [REDACTED]. 198 See sub-section 3. Planning and preparation meetings and public ODM rallies. 199 [REDACTED]. 200 [REDACTED]. 201 [REDACTED]. 202 [REDACTED]. 203 [REDACTED]. 204 [REDACTED]. 205 [REDACTED]. 206 [REDACTED]. 207 [REDACTED].
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thereafter absolved the youths of the crimes they had committed during the violence.208
106. RUTO proudly emphasized his role as the leader of the war against the enemies, in particular against the Kikuyu, and he hosted many meetings as described above to achieve his objective of evicting PNU supporters from the Rift
Valley.209 Most notably, as election day approached, RUTO hosted thousands of youths at his house in Sugoi on 14 December 2007. RUTO affirmed the plan of waging war to expel and kill the targeted communities and destroy their properties.
RUTO paid and armed thousands of warriors – according to their military background – in preparation for the attacks210 and designated a pecuniary reward for killing a Kikuyu or destroying a house,211 seeking promises from the crowd to kill and displace the targets and destroy their properties.212 He further described the targeted communities as ‘snake[s]’ and gave instructions to chase their targets even if they sought refuge in safe places such as churches.213 Perpetrators used the same term during the attacks.214
ii. The Accused’s individual contributions
107. In his capacity as the Kalenjin leader and the most influential Kalenjin politician in the Rift Valley,215 RUTO had unfettered access to the community’s resources including manpower, funds, weaponry, and transportation, all crucial for the implementation of the plan. RUTO further used his authority to promote and impose the objectives of the common plan on the Kalenjin community. RUTO utilized political campaigns, and public events and gatherings, as well as the media to exploit the community’s historic grievances and promote the objectives of the
208 [REDACTED]. 209 [REDACTED]. 210 [REDACTED]. 211 [REDACTED]. 212 [REDACTED]. 213 [REDACTED]. 214 [REDACTED]. 215 [REDACTED].
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common plan.216 RUTO fueled hatred against the targets and steadily transformed the Kalenjins’ feeling of injustice into a plan of action to ‘uproot the weeds’ and regain the land.217 As a result, RUTO was able to create a community-backed organization – the Network– to attack multiple locations, in order to expel the targeted communities from the Rift Valley.218
108. RUTO hosted and participated in preparatory meetings and events where the attacks were planned, and the objective of the common plan was articulated and reaffirmed to the Network.219
109. RUTO, through his ties inside and outside Kenya, facilitated the procurement of weapons. Following RUTO’s instructions, weapons were obtained and distributed to the perpetrators,220 firearms to ex-soldiers, crude and traditional weapons to ordinary fighters.221
110. Throughout the planning period, RUTO ensured that funds – his own contributions and money raised from other sources – were available to the Network to implement the common plan.222
111. RUTO paid stipends and rewards to motivate and control the Kalenjin attackers to implement the common plan. As the elections approached, RUTO held several gatherings where youths of the Network were paid in preparation for the attacks.223 He also promised monetary rewards to the Kalenjin who would kill individuals belonging to the targeted communities or destroy their property.224
112. RUTO’s also contributed by producing maps marking locations thereafter targeted for attacks. His maps, which he distributed among members of the
216 See sub-section 3. Planning and preparation meetings and public ODM rallies. 217 [REDACTED]. 218 [REDACTED]; See also Section II Organization-The Network and Section V. Crimes. 219 See sub-section 3. Planning and preparation meetings and public ODM rallies, see also [REDACTED]. 220 [REDACTED]. 221 [REDACTED]. 222 [REDACTED]. 223 [REDACTED]. 224 [REDACTED].
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Network, identified the areas densely inhabited by the targeted communities with color-codes: red for Kikuyu, blue for Kamba and black for Kisii communities.225
113. RUTO, together with other key members of the Network, established a communication system to channel information by (1) obtaining information from groups located at various locations in the Rift Valley,226 (2) sharing plans and information from group to group regarding targeted locations,227 (3) reporting on the progress of the overall plan,228 (4) instructing members of the Network to listen to
KASS FM, through which RUTO’s orders would be aired,229 and (5) arranging for distribution of phones specifically to be used in coordinating the planned attacks, including by disseminating orders to the local coordinators leading the attacks on the ground and receiving requests for reinforcement.230
114. RUTO supervised the development and implementation of the plan and received reports from the different regions of the Rift Valley on the progress in preparation of the attacks.231
115. RUTO established and relied on a multi-faceted process to ensure compliance with his orders, including (1) monitoring and reporting system by local individuals or coordinators in particular areas of the Rift Valley, regarding the identification of members of the Network who failed to comply with the planned action;232 (2) tribal pressure imposed by the Kalenjin community, particularly elders and community leaders, on the Kalenjin perpetrators;233 (3) disciplinary measures including local tribunals,234and punishment for insubordination.235
225 [REDACTED]. 226 [REDACTED]. 227 [REDACTED]. 228 [REDACTED]. 229 [REDACTED]. 230 [REDACTED]. 231 See sub-section 3. Planning and preparation meetings and public ODM rallies. [REDACTED]. 232 [REDACTED]. 233 [REDACTED]. 234 [REDACTED]. 235 [REDACTED].
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116. RUTO’s role is particularly demonstrated through the following contributions: (1) using his authority in the Rift Valley to mobilize supporters for the
Network and implement the common plan;236 (2) using anti-PNU rhetoric at preparatory meetings and events to create anti-PNU sentiment and fear among PNU supporters;237 (3) providing direct perpetrators with weapons, food and other logistical necessities;238 (4) financing the Network;239 (5) coordinating the implementation of the common plan via coordination of logistics;240 (6) informing subordinates and direct perpetrators on where to obtain instructions (for instance
KASS FM), how to communicate amongst each other, and how to execute the plan;241
(7) arranging, through other key members of the Network, the distribution of materials to construct bows, arrows and other traditional weaponry,242 (8) identifying on the ground perceived PNU supporters as targets for the attacks;243 and
(9) maintaining contact with members of the Network leading the attacks to instruct them and to learn of their progress.244 iii. The existence of an organized and hierarchical apparatus of power245
117. RUTO and other key individuals created an adhoc organization with an established hierarchy through which the attacks were executed.246 RUTO was at the top of the hierarchy, with other members who also played dominant roles.247 RUTO’s authority and control over the Network was recognized by Network subordinates and direct perpetrators.248
236 [REDACTED]. 237 [REDACTED]. 238 [REDACTED]. 239 [REDACTED]. 240 [REDACTED]. 241 [REDACTED]. 242 [REDACTED]. 243 [REDACTED]. 244 [REDACTED]. 245 Section II. Organization – The Network is incorporated by reference (in particular, paras 28-52). 246 [REDACTED]. 247 [REDACTED]. 248 [REDACTED].
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118. The Network’s established structure included political, media, financial, tribal and military components. Each was entrusted with detailed tasks in planning, preparing and implementing the common plan.249 That each of these components carried out the assigned tasks in a coordinated manner under a single leadership, resulting in the successful conduct of the attacks pursuant to a defined plan, is a manifestation of the high level of organization and hierarchy employed by the
Network. iv. The Accused’s ability to cause the Network, an organization composed of
fungible individuals, to contribute to the crimes
119. The Network comprised thousands of fungible individuals acting in a hierarchical structure under the authority and control of RUTO and key members of the organization.250 RUTO used an existing punishment and reward mechanism to ensure compliance with his orders.
120. RUTO’s ability to cause the organization to contribute to the crimes was demonstrated, in particular, in the following ways: (1) as Kalenjin leader, RUTO had the political authority and power to choose the nominees representing the community in elections, which ensured the absolute loyalty of ODM MPs and aspiring MPs;251 (2) RUTO was the most authoritative ODM figure in the Rift
Valley;252 (3) RUTO used existing structures and roles in Kalenjin society to create the
Network;253 (4) commanders responded directly to RUTO;254 (5) RUTO ensured that
Network members understood the common plan;255 (6) RUTO together with other high ranking members financed the Network;256 and (7) RUTO ensured that the
249 See paras 30-52. 250 [REDACTED]. 251 [REDACTED]. 252 [REDACTED]. 253 [REDACTED]. 254 [REDACTED]. 255 [REDACTED]. 256 [REDACTED].
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Network had the means necessary to carry out the attacks including training, funds, weapons, transportation and other logistics.257
121. In order to carry out the planned attacks against the targeted communities,
RUTO employed the different components of the organization to mobilize the youths including in certain instances by forcing individuals of the Kalenjin community to participate in the attacks.258 Failure to follow RUTO’s order would entail physical punishment, as well as community condemnation and traditional cursing.259
122. Training was organized for Kalenjin youths to prepare them to participate in the attacks. Traditional circumcision ceremonies were used to train youths to use traditional weapons such as bows and arrows, to administer oaths of secrecy
(violations of which were punishable by death) and oaths to follow orders and the guidance of the elders, and to perform blessings and sacrifices.260 Youths also received training specifically for the purpose of the PEV, including how best to burn down houses, and how not to leave any traces of evidence and the use of firearms.261
123. RUTO’s ability to cause the organization to contribute to the crimes is further demonstrated by the fact that the Network subordinates followed RUTO’s orders and did in fact commit the crimes as planned and following the pattern discussed during the planning meetings.
c) Subjective elements
i. The Accused’s intent and knowledge
124. The evidence as outlined below shows that RUTO had the requisite intent and knowledge including(1) his intent to bring about the objective elements of the crimes charged or awareness that this would occur in the ordinary course of events; (2)
257 [REDACTED]. 258 See paras 30-52 [REDACTED]. 259 [REDACTED]. 260 [REDACTED]. 261 [REDACTED].
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awareness of the factual circumstances that enabled him to exercise jointly with others function control over the crimes; (3) awareness of the fundamental features of the organization; (4) awareness that the common plan involved an element of criminality; and (5) awareness of the widespread and systematic nature of the attack and that it was conducted pursuant to or in furtherance of an organizational policy.
125. As previously discussed, RUTO made volitional contributions to the conceptualization and implementation of the common plan to which the commission of crimes was an intrinsic part.262 RUTO gave clear instructions to carry out acts of killings and displacement against PNU supporters.263 He took the necessary measures to ensure the implementation of his instructions to commit the crimes, including: planning of the attacks, mobilization and recruitment of warriors, appointment of commanders and local coordinators, identification of the targeted locations, and arrangement of funds, weapons, transportation, training and other logistics to enable the Network to kill, expel and destroy property of the targeted communities.264
126. RUTO determined the time at which the planned attacks should commence.
He ordered that if KIBAKI were declared the winner, the warriors should yell the traditional war cry and immediately begin to carry out the planned acts of killing and destruction against the targeted communities.265
127. During the course of the attacks, RUTO supervised their execution, maintained contact with the commanders in the field and ordered reinforcements of fighters when needed.266 RUTO also visited groups of fighters during their training in the use of firearms. The fighters lined up to salute RUTO, who rewarded them for
262 See sub-section ii. The Accused’s individual contributions. 263 See sub-section 3. Planning and preparation meetings and public ODM rallies, in particular, paras 56, 57, 59, 60, 63, 65-70, 73-82, 84, 86-90. 264 See sub-section ii. The Accused’s individual contributions and sub-section iv. The Accused’s ability to cause the Network, an organization composed of fungible individuals, to contribute to the crimes. 265 [REDACTED]. 266 [REDACTED].
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fighting hard in the Eldoret attack and promised further rewards.267 In May 2008
RUTO also sent KIBET to pay Kalenjin attackers after the fact.268
128. In regards to the crime of persecution, RUTO with other co-perpetrators, acted with discriminatory intent in targeting particular parts of the civilian population because of their perceived political affiliation. RUTO’s discriminatory intent is demonstrated by (1) his anti-PNU rhetoric at meetings and rallies, inciting anti-PNU sentiment among the direct perpetrators;269 (2) statements to Network perpetrators to attack PNU supporters and expel them from their land, killing them if necessary;270 (3) obtaining and distributing funds and other means to Network subordinates and perpetrators to punish and expel the PNU supporters from the Rift
Valley;271 (4) use of marked maps and individuals with familiarity of inhabitants of targeted locations in order to identify the PNU-perceived supporters;272 and (5) the construction of roadblocks on all major roads to identify PNU-perceived supporters.273
129. Through a functional communication system at his disposal, RUTO passed his orders and received information from the direct perpetrators on the ground during the attacks.274
130. RUTO’s dominant position as the highest authority in the Network provided him with full knowledge that his actions would result in the commission of the crimes charged. It equally demonstrates his awareness of his ability to exercise jointly with others functional control over the crimes.275
131. RUTO acknowledged his role in leading the attacks against the targeted communities. For instance, in one of the planning meetings, RUTO addressed
267 [REDACTED]. 268 [REDACTED]. 269 See para 117. 270 See sub-section 3. Planning and preparation meetings and public ODM rallies, in particular, paras 56, 57, 59, 60, 63, 65-70, 73-82, 84, 86-90. 271 See sub-section ii. The Accused’s individual contributions. 272 See para 51. 273 Ibid. 274 See para 114. 275 See paras 114, 121.
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members of the Network including the commanders and coordinators leading the warriors on the ground and declared that he would lead the fight against the
Kikuyu.276 In another meeting where preparation for the attacks again was discussed,
RUTO concluded the meeting by saying “you recognized me as your leader and have accepted to do things my way”.277 RUTO’s awareness of his authority is further illustrated by his threats to punish Network members who failed to follow his orders.278
132. Furthermore, RUTO was aware of the fundamental features of the organization and its ability to carry out the attacks, given his leading position and the fundamental role he played in piecing together its constituent components as previously discussed.279 RUTO’s knowledge of these features made him rely on the organization to carry out sweeping attacks targeting populous and sizeable portions of the Rift Valley.280
133. The scale of the attacks is also reflected in the preparations in which RUTO, himself, played a crucial rule.281 Thousands of warriors were mobilized, trained, paid and equipped with traditional weapons and firearms to participate in coordinated attacks, many of whom RUTO met in person and ordered to carry out the attacks.
d) Post-offence conduct
134. After the attacks, RUTO and other members of the common plan took actions to cover up their involvement in the PEV, with the goal of avoiding criminal
276 [REDACTED]. 277 [REDACTED]. 278 [REDACTED]. 279 See Section II. Organization – The Network. 280 See Section v. Crimes. 281 See sub-section 3. Planning and preparation meetings and public ODM rallies.
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prosecution. By way of illustration, [REDACTED].282 These actions constitute evidence of the RUTO’s consciousness of guilt.
e) Other characterizations of RUTO’s criminal responsibility
135. As previously explained,283 RUTO’s contributions may equally be characterized as: (i) ordering, soliciting or inducing under Article 25(3)(b); (ii) aiding, abetting or otherwise assisting under Article 25(3)(c); or (iii) contributing “in any other way” to a crime committed by a “group of persons acting with a common purpose” under Article 25(3)(d).
136. Liability under Article 25(3)(b) is supported by the following points, among others: (i) in his commanding capacity over the Network, RUTO instructed the perpetrators as to who to kill and displace and whose property to destroy;284 (ii) appointed commanders and divisional commanders and assigned them to specific areas and locations;285 (iii) he had full control to decide on where and how the weapons he distributed should be used;286 and (iv) he utilized rewards and punishments to enforce his orders.287
137. Liability under Article 25(3)(c) is supported by the following points, among others: (i) RUTO negotiated and supervised the purchase of guns and crude weapons to implement the criminal plan;288 (ii) he provided funds for food and transportation for perpetrators;289 and (iii) he provided maps marking the targeted areas and the house and business premises owned by perceived PNU supporters.290
138. Finally, liability under Article 25(3)(d) (for “any other” contribution) is supported by the above facts because the actions were carried out by “a group of
282 [REDACTED]. 283 ICC-01/09-01/11-433, paras 24-35. 284 See sub-section 3. Planning and preparation meetings and public ODM rallies, in particular, paras 56, 57, 59, 60, 63, 65-70, 73-82, 84, 86-90. 285 [REDACTED]. 286 [REDACTED]. 287 See paras 47, 116. 288 See para 110. 289 See para 117. 290 See para 51.
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persons acting with a common purpose”, namely the members of the common plan whose “common purpose” was the eviction and persecution of the perceived PNU supporters.
B. SANG’s criminal responsibility
139. SANG is criminally responsible pursuant to Article 25(3)(d) of the Statute, for crimes against humanity as defined in Article 7 of the Statute. As outlined below,
SANG intentionally contributed to the commission of the alleged crimes of murder, deportation or forcible transfer of the population and persecution by the Network’s direct perpetrators with the aim of furthering the criminal activity and criminal and discriminatory purpose of the group led by RUTO.
140. Due to the wide popularity of SANG’s Lee Ne Emet program within the
Kalenjin community, SANG was so influential that he overshadowed KASS FM’s ownership and management as well as other presenters.291 SANG knew of his influence over the community. During the 2007 elections, two Kikuyu security personnel were killed and others were severely injured, when SANG announced on his show that they were deployed by the Government to rig the elections. SANG then announced the incident of the attack on his show. 292 Other acts of violence were also committed following similar announcements made by SANG demonstrate his influence as well as his awareness thereof.293
141. SANG had full discretion over the topics discussed in his program.294 He controlled the views and opinions aired in his program through, inter alia, the provision of a separate designated phone line for previously-approved callers who promoted his views;295 choosing which caller to respond to;296his ability to terminate
291 [REDACTED]. 292 [REDACTED]. 293 See para 84; [REDACTED]. 294 [REDACTED]. 295 [REDACTED]. 296 [REDACTED].
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a call or to condemn or expose the caller to public condemnation if he expressed an opposing view.297
142. SANG’s ability to steer public opinion within the Kalenjin community materialized around the time of the 2005 constitutional referendum, where his role in promoting the “NO” campaign was appreciated and rewarded within the community.298 Subsequently, SANG and RUTO forged a strong relationship based on mutual interests. RUTO’s prominence grew within the Kalenjin community, and
SANG became part of RUTO’s inner-circle and maintained constant contact with him.
143. SANG’s close ties with RUTO, coupled with his popularity and ability to influence public opinion, increased his status within the Kalenjin community.
Kalenjin leaders eagerly maintained good relations with SANG to gain RUTO’s approval. They also feared SANG’s ability to castigate them on-air and provoke public dissatisfaction against them.299
144. SANG’s importance in the implementation of the plan caused RUTO to ask him to postpone his ambition to stand for election and remain in his KASS FM position serving RUTO’s agenda. In return, RUTO provided him financial rewards
(being on RUTO’s payroll made SANG one of the wealthiest journalists in Kenya) and promised that he would be nominated for senior political office once the ODM won the 2007 elections.300
145. It is within this context that SANG fervently supported the common plan and was eager to ensure its implementation using his influence within the Kalenjin community and his ability to mobilize them. a) SANG contributed to the crimes charged
297 [REDACTED]. 298 [REDACTED]. 299 [REDACTED]. 300 [REDACTED].
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146. As set out below, SANG intentionally contributed to the commission of the crimes, with the aim of furthering the criminal activity and criminal purpose of the group led by RUTO.
147. SANG intentionally contributed to the commission of the crimes against humanity referred to above by: (i) placing his show Lee Ne Emet at the disposal of the organization;301 (ii) providing RUTO with a platform on the show to regularly address the entire Kalenjin community and promote his plan;302 (iii) taking calls from specific persons designated by the Network to spread its views and serve its objectives;303 (iv) promoting and reporting on the meetings of the organization and participating personally in some of these meetings;304 (v) fanning the violence by spreading hate messages explicitly declaring the Kikuyu as the Kalenjins’ enemy and expressing the desire to expel them;305 (vi) broadcasting false news regarding alleged murders of Kalenjin people in order to inflame the atmosphere in the days preceding the elections;306 and (vii) announcing that the elections were ‘rigged’ and calling on the Kalenjin to restore justice and to ‘fight to get back what the Kikuyu had stolen’ by evicting the Kikuyu from the Rift Valley.307
148. After the presidential election results were announced, SANG, through his radio program, called on perpetrators to begin the attacks308 and used coded language during the attacks to direct physical perpetrators to designated target areas.309 Perpetrators who attended planning meetings or ODM events listened to the broadcasts, understood the coded language and proceeded to the previously identified locations to execute the attacks.310
301 [REDACTED]. 302 [REDACTED]. 303 [REDACTED]. 304 [REDACTED]. See sub-section 3. Planning and preparation meetings and public ODM rallies, in particular, paras 57, 59, 61, 63, 67, 69, 76, 82. 305 [REDACTED]. 306 [REDACTED]. 307 [REDACTED]. 308 [REDACTED]. 309 [REDACTED]. 310 [REDACTED].
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149. Perpetrators acknowledged SANG’s role in encouraging them to participate in the attack.311
150. During the attacks, SANG sought updates on the perpetrators’ progress and broadcast live from perpetrators as attacks were committed.312 SANG’s broadcasts encouraged other Network perpetrators to continue their participation, and was one method of coordinating the redeployment of resources.313
i. SANG’s contribution was intentional and with the aim of furthering the
criminal activity or criminal purpose of the group
151. SANG’s intent is demonstrated by the following: (i) as a leading Kalenjin broadcaster, SANG was uniquely situated to broadcast to the Kalenjin community;314
(ii) SANG along with RUTO led meetings advocating the expulsion of PNU supporters;315 (iii) SANG personally aired anti-PNU rhetoric on KASS FM inciting fear and hatred against PNU supporters, and specifically referred to the need to attack them;316 (iv) SANG provided access to pre-screened Network callers and then aired derogatory and anti-PNU language;317 (v) SANG used coded language during his broadcasts to instruct listeners to attack;318 and (vi) SANG broadcast live calls from direct perpetrators during the commissions of attacks.319
ii. The alleged crimes fall within the jurisdiction of the court and were carried
out by a group of persons acting with a common purpose
152. These crimes, as explained in sections V, fall within the jurisdiction of the court.
311 [REDACTED]. 312 [REDACTED]. 313 [REDACTED]. 314 See supra para 141. 315 See sub-section 3. Planning and preparation meetings and public ODM rallies, in particular, paras 57, 59, 61, 63, 67, 69, 76, 82. 316 [REDACTED]. 317 [REDACTED]. 318 [REDACTED]. 319 [REDACTED].
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153. As set forth in section III, the crimes committed in the different locations specified below were committed pursuant to a common plan that RUTO and others as members of a group of persons belonging to the organization established.320
IV. Article 7 chapeau elements: Widespread or systematic attack directed
against a civilian population
154. The crimes against humanity alleged in Counts 1–6 occurred in the context of an attack that was both widespread and systematic against members of the civilian population. From 30 December 2007 through 16 January 2008, Network perpetrators were responsible for attacks over a large geographical location in four different locations in two districts (Uasin Gishu and Nandi) of the Rift Valley, targeting PNU supporters.
155. The direct perpetrators implemented the Network’s policy of attacking the
PNU supporters to punish and permanently expel them from the Rift Valley by systematically inflicting fear, killing, looting, burning or otherwise destroying their property.321 Large groups of armed Kalenjin youths carried out attacks in the specific locations referred to in Counts 1–6 against particular ethnic groups of the civilian population (primarily Kikuyu, Kamba and Kisii), who were perceived to be PNU supporters, to force them from the Rift Valley using whatever means necessary, including the commission of crimes.322
156. The PEV carried out in the Rift Valley caused approximately 744 deaths, over
2,100 injured, and up to 408,631 IDPs.323 The Rift Valley was the epicentre of the violence, suffering the greatest number of crimes. The Uasin Gishu and Nandi
Districts suffered the largest share of victims during the PEV324 where there were
320 See in particular sub-section i. The existence of a common plan and ii. The Accused’s individual contributions. 321 [REDACTED]; see also evidence relating to specific attacks in section V below. 322 [REDACTED]; see also section V below for evidence showing that PNU supporters were indeed targeted in accordance with the intended plan. 323 [REDACTED]. 324 [REDACTED].
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approximately 230 deaths and over 1,000 injuries.325 Civilians were displaced from across the Rift Valley, including Turbo town, the greater Eldoret area (Huruma,
Kiambaa, Kimumu, Langas and Yamumbi), Kapsabettown and Nandi Hills.326
157. In Uasin Gishu District (Turbo town and the greater Eldoret area) the attackers killed over 200 people, injured over 500 and displaced 7,800 civilians.327Uasin Gishu District suffered the greatest destruction with more than
52,000 houses destroyed– the highest number of houses destroyed during the PEV in a single location in Kenya.328 In Nandi District (Kapsabet town and Nandi Hills town) attackers killed at least 7 people, injured over 500, displaced over 30,000 and looted and burned at least 400 properties.329
158. The organized nature of the acts of violence and the improbability of their random occurrence corroborates the evidence of pre-planning, shows that they followed a similar pattern, and establishes that the attacks were systematic. Targeted victims, groups and locations were identified in advance of the attacks based on their perceived political affiliations.330 Houses and businesses belonging to specific ethnic groups perceived to be PNU supporters were singled out to be targeted, while the others were spared.331 In some circumstances, perpetrators who had earlier identified PNU supporters’ homes and businesses were deployed on site to execute the attack and/or to assist and direct others to do so.332 The burning of PNU supporters’ houses took place in a systematic manner in the different attacks across the Nandi and Uasin Gishu Districts.333 The attacks were massive, frequent, carried out collectively with considerable seriousness and directed against a large number of
325 [REDACTED]; see also evidence relating to killings as a result of the specific attacks in section V below. 326 [REDACTED]; see also evidence relating to the specific incidents of displacement of persons in section V below. 327 [REDACTED]. 328 [REDACTED]. 329 [REDACTED]. 330 [REDACTED]. 331 [REDACTED]. 332 [REDACTED]. 333 [REDACTED].
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civilian victims. Perpetrators approached the target locations simultaneously, in large numbers,334 and from different directions.335 Attackers systematically and simultaneously set up roadblocks in different locations throughout Nandi and Uasin
Gishu Districts in order to attack or kill the fleeing victims.336
V. Crimes
159. From on or about 30 December 2007, and in the wake of the announcement of the presidential elections, groups RUTO supporters attacked Turbo town, the greater
Eldoret area (Huruma, Kimumu, Langas, Yamumbi and Kiambaa), Kapsabet town and Nandi Hills town throughout the Uasin Gishu and Nandi Districts of Kenya’s
Rift Valley. As detailed below, the plan devised by the Network to attack perceived
PNU supporters was put into action. RUTO’s supporters looted and burned their houses, leaving the occupants no alternative but to flee. Some escaped while others could not and were killed or injured by their attackers. The violence continued in these areas until 16 January 2008. Many remain displaced as a result of these attacks to this day.
a) Turbo
160. Turbo town held a large population of perceived PNU supporters and had been singled out as a target before it was attacked.337 Following the announcement of the Presidential election results, RUTO’s supporters started burning Kikuyu houses in Turbo.338 Directly before the attack began, attackers gathered at pre-designated meeting points bordering Turbo town, where leaders organized them into groups and elders assigned tasks.339 RUTO’s supporters then attacked Turbo town from all
334 [REDACTED]. 335 [REDACTED]. 336 [REDACTED]. 337 [REDACTED]. 338 [REDACTED]. 339 [REDACTED].
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directions.340 Kikuyu properties identified by local Kalenjin were looted and burned.341 Elders associated with RUTO took the lead in logistical matters and instructed the Kalenjin youth to carry out the attacks.342 According to one witness,
“the agenda was to go and chase the Kikuyu and burn their houses.”343 Those from other tribes believed to be PNU-supporters were also targeted.344 Roads around
Turbo were blocked, impeding those who were attempting to leave the violence that was consuming the town.345
161. The Kikuyu residents of Turbo had no alternative but to flee – their homes had been burned as planned346 and thousands of people took shelter at a makeshift
IDP camp near the police station in Turbo.347 Turbo was almost completely destroyed as a result of the attack.348
162. RUTO himself had singled out Turbo as a target for attack349 and Network members, including Farouk KIBET, elder Christopher Kitino KISORIO, Solomon
TILAWEN (a.k.a Solomon TIROP) planned and led the attack on Turbo.350 KIBET was tasked by RUTO to visit the Kalenjin warriors in Turbo during the PEV351 and transported gas cylinders used as accelerant.352 He passed on a message from RUTO to the Kalenjin youth which said that they should attack the Kikuyu.353 Christopher
Kitino KISORIO gave directions to the Kalenjin warriors354 and TILAWEN was one of the leaders in charge of the youth during the attack.355 During the violence,
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meetings were held at the compound of KEMBOI, where logistics were derived and warriors were replenished with food. Elders were receiving information from the field.356 RUTO was communicating with his subordinates instrumental in the attack on Turbo, receiving updates, delivering instructions and providing funding.357
Greater Eldoret area
163. After the results of the presidential election were announced, various locations in the greater Eldoret area, Uasin Gishu District, were attacked by Kalenjin warriors. As detailed infra, armed Kalenjin youth were organized by local coordinators and leaders before attacking Huruma, Kimumu, Langas, Yamumbi and
Kiambaa, all areas populated with a high density of PNU supporters.
b) Huruma
164. In 2007, Huruma was predominantly PNU, with almost all land in the area owned by Kikuyu, making it an ideal target for attack by ODM supporters in the
PEV.358 Following the announcement of the presidential election results, the plan to attack Huruma sprang into action, with Kalenjin youth transported to the area.359
Witnesses in Huruma heard a traditional Kalenjin war cry.360 Kalenjin youth – some, including their leader, known personally to witnesses – armed with rungus and bows and arrows commenced their attack on the town, looting and burning Kikuyu houses, using accelerant to speed up the process.361
165. According to one witness, Kalenjin youth told their victims that the Kikuyu
“must leave because they had rigged the votes” and that “from now on, there is no land for Kikuyu here, we will burn you all and take you back to Central.”362 The
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attack continued with armed coordinated reinforcements arriving from all directions.363 Kalenjin youth sprayed Kikuyu houses with petrol and ignited them with sticks whose ends were covered in petrol-soaked cloth and lit, causing the houses to immediately burst into flames.364 Only Kikuyu houses were burned.365
166. Kikuyu residents had no choice but to flee,366 although some were not able to.367 One local elder trying to flee was not fast enough – he was caught by the
Kalenjin youth, who killed him with their rungus and machetes.368 Another two fleeing Kikuyu who encountered attacking Kalenjin youths were also killed.369
Roadblocks manned by Kalenjin youth were erected in the Huruma area.370 Others who did manage to evade their attackers took refuge in churches which soon overflowed with displaced Kikuyu whose houses had been burned.371 Those who lived on the outskirts of Huruma, which bordered Kalenjin areas, were hardest hit by the attack. Most of these people left the area permanently as a result.372
167. Witnesses implicate RUTO’s associates as supporting the Kalenjin warriors who attacked Huruma, like KIBOR, who assisted with transportation373 and John
TANUI, at whose home warriors would rest during the attack.374
c) Kimumu
168. The attack on Kimumu was planned some time before it was put into action.375 Following the announcement of the Presidential election results, witnesses
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heard the traditional war cry in Kimumu,376 which preceded the destruction and violence which was to be unleashed on the Kikuyu residents of the town.377
169. The Kalenjin youth who had been transported to Kimumu set alight Kikuyu properties pointed out by local Kalenjin youth and elders known to witnesses.378
They were armed with pangas, spears, bows and arrows and they used accelerant, causing fires to erupt.379 Property was looted and houses were burned by the attackers.380 Local Kalenjin including a councillor facilitated the transportation of youths381 and the carrying of weapons and containers of petrol used to burn the houses.382 One witness was severely beaten with sticks and bows by Kalenjin youth known to her, who told her that they were beating her because “KIBAKI had stolen the votes.”383 More attackers armed with rungus passed by the town, and started burning Kikuyu houses in their path – “there was fire from all directions.”384
170. Roadblocks manned by Kalenjin youth were erected on the roads leading from Kimumu.385 Displaced Kikuyu residents were ferried out of Kimumu in lorries, many ending up at the Eldoret Showground, where some remained for years.386
171. RUTO himself had singled out Kimumu as a target for attack.387 Witnesses link the attack on Kimumu to RUTO through his close associates Jackson KIBOR,
Lucas SANG, and other Network members who were present at the planning meetings held in December.388 Joshua SANG broadcast the locations of the various meetings on his LeNeEmet program.389 KIBOR supported the transportation of
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Kalenjin youth to Kimumu390 whilst Lucas SANG was leading a group of youth in the attack.391 Lucas SANG was in telephone contact with RUTO, who was in Nairobi, just prior to the attack on Kimumu, who told him that the election had been rigged and the Kikuyu would have to “go”.392
d) Langas
172. After the results of the Presidential election were announced, the Kalenjin and
Luo warriors launched their attack on Langas systematically looting and burning houses in all areas of the town.393 Although local Kikuyu tried to fend off their attackers, the Kalenjin proved too organized and powerful.394 One witness saw a group of Kalenjin youth armed with bows and arrows being led by his neighbour, an elder ODM supporter.395 Only the Kikuyu houses were burned, the others remained untouched.396 Elder local Kalenjin who knew which houses belonged to Kikuyu supervised the attacks.397
173. People were forced to flee, some hiding in the bushes as the Kalenjins looted and burned their homes.398 One eyewitness recalls a Kikuyu girl of about 10 years who left the cover of a hiding spot only to encounter Kalenjin attackers. They shouted out, demanding that her mother reveal herself immediately. When no-one emerged, the witness watched as the young girl was slashed to death by the
Kalenjins with pangas.399
174. Roadblocks manned by Kalenjin youth were erected around Langas.400
Witnesses saw the bodies of Kikuyu scattered along the roads of Langas in the
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aftermath of the attack, some with arrows protruding from them.401 Many people were injured and killed.402
175. The town’s targeted Kikuyu population sought asylum at the Langas police station and local churches.403 Thousands of displaced Kikuyu and other PNU supporters were taken to IDP camps, many of whom have not returned to Langas since, fearing for their safety.404
176. Network members close to RUTO who participated in planning the PEV were also instrumental in supporting the Kalenjin attackers on the ground. Agathering where youths attacking Langas were reinforced took place at the elder MBERIA’s place, who according to one witness was the ‘custodian of the weapons’.405
e) Yamumbi
177. Following the announcement of the presidential election results, groups of armed Kalenjin youth were deployed to commence their attack on Yamumbi.406 The village was an ideal target for the Kalenjin attackers, as its demographic was largely
Kikuyu and PNU supporters.407
178. Witnesses heard screams and traditional Kalenjin and Nandi war cries, signalling that the attack on Yamumbi had been launched.408 Upon arriving in
Yamumbi, one witness watched as the leader of a group of attackers slashed the throats of two defenceless children.409
179. Kalenjin youth with painted faces bearing bows and arrows, pangas and axes descended on Yamumbi and began to ignite Kikuyu houses, using dried maize
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stalks, petrol and paraffin as accelerant.410 Attackers were organized, with those local to the area singling out houses belonging to Kikuyu, which were subsequently burned.411 As a result, Yamumbi was engulfed in the smoke of the many burning
Kikuyu houses412 and people were fleeing their homes.413
180. After replenishing themselves at the property of Isaac MAIYO,414 the Kalenjin attackers continued their attack on Yamumbi, continuing to burn those Kikuyu houses that had been missed the previous night.415 One witness watched as his elderly friend tried to defend his home, only to see the attackers cut him to pieces, finally burning him with maize stalks.416 The same witness also saw another old man who had caught himself in barbed wire be cut and killed by Kalenjin attackers.417
Another witness watched ten Kalenjin attackers kill her husband, slashing him with a machete and stabbing him repeatedly with arrows.418
181. The residents of Yamumbi had no option but to flee their homes. Witnesses sought refuge at the Langas police station along with other displaced persons fearing for their lives.419 The aftermath of the attack on Yamumbi was shocking. Kalenjin and
Nandi attackers had killed and maimed residents of Yamumbi, razed their properties to the ground and chased them from their homes.420
182. Witnesses implicate Isaac MAIYO421 as supporting the Kalenjin warriors who attacked Yamumbi by assisting with transportation and providing them with food and sustenance at his house during the PEV.422 RUTO’s associate Charles
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BARCHIGEI, who was one of the coordinators of the PEV attacks was in telephone contact with RUTO during the PEV,423 as were others including Jacob BITOK.424
f) Kiambaa
183. Kiambaa was attacked by Kalenjin youths following the announcement of the election results.425Kikuyu from neighbouring villages which had been attacked as part of the PEV fled to Kiambaa, and were provided with shelter at the Kiambaa
Assembly of God Church (Kiambaa Church), which stood at the centre of
Kiambaa.426 By the evening of 31 December, up to 350 women, children, elderly and disabled persons from Kiambaa and surrounding areas took shelter at the Church, with 150 men outside standing guard.427 Witnesses sought refuge at the Church because it was a holy place, which was supposed to be immune from attack.428
184. At around 10am on the morning of 1 January 2008, witnesses heard screaming and the traditional war cry429, triggered by the sight of large groups of Kalenjin youth descending upon Kiambaa, armed with pangas, rungus, bows, arrows and spears, their faces painted, screaming and chanting as they attacked.430 They attacked from different directions.431 As the attackers neared the KiambaaChurch, they attacked and killed Kikuyu they encountered on the way and burned down Kikuyu houses in their path.432 Although those defending the Church tried to fend off the
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attackers, the Kalenjin proved too strong in numbers and power.433 Attackers shot arrows at people and threw stones on the Church roof, terrifying those inside and outside.434
185. Eyewitnesses watched as the Kalenjin attackers forced those remaining outside the Church into it, trapping them inside.435 They dragged mattresses which had been used by those seeking refuge to sleep on, doused them in petrol, piled them against the Church and set them alight, causing it to immediately burst into flames.436
186. The scene inside the Church was one of horror. The most vulnerable members of the community were trapped inside the Church – a place thought to be one of refuge and protection437 - but which instead became a place of utter terror, a raging inferno. One witness described the scene inside the Church as the blaze disintegrated the building and those in it:
“I could smell and feel smoke coming into the Church. […] You could be crushed by people in the panic to get out. People were falling down at the doorway because of the crush. Some were lying with their heads out of the Church and legs inside and could no longer move. There were so many people that these fallen ones were piled up almost to waist height.”438
187. Some of those that did manage to escape the blaze were caught outside and killed or injured.439 One witness who herself was badly burned in the fire saved the life of her new-born baby by throwing him out the window of the Church while she was on fire.440 Houses in Kiambaa were looted.441 Victims recognized some of their
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attackers.442 One witness saw his elderly father running towards the burning church, only to be struck in the back of the head by a Kalenjin neighbour with a panga, while another shot him in the back of the head with an arrow. He was killed.443 Not long after, the same witness watched his brother also being attacked by a Kalenjin bearing a panga.444
188. One eyewitness who had watched the attack from outside the Church saw it collapse, still burning. “There was no more screaming,” he said. He saw piled-up burnt bodies and the incinerated remains of a wheelchair in the carnage.445 Between
17 and 35 people were killed in the fire alone,446 with many more killed and injured outside it and in Kiambaa village.447
189. In the aftermath of the attack, the Kikuyu residents of Kiambaa had no alternative but to flee. Thousands of Kiambaa residents first took refuge at St John’s
Cathedral (which was also subsequently attacked) and then at the Eldoret
Showground,448 with many having never returned to Kiambaa.449
190. Victims from the Kiambaa Church who survived the burning were left with permanent injuries, including dismembered limbs, debilitating cuts to the body and burns which have left them with scars for life.450
191. RUTO himself had identified Kiambaa as a target for attack and as being densely populated with Kikuyu.451 Further, RUTO’s close associate, Mark TOO, hosted several planning/preparatory meetings at his compound near Kiambaa in the months preceding the elections. Approximately 3,000 Kalenjin youths attended these meetings. RUTO himself was present at one of these meetings and addressed the
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Kalenjin youths and their leaders.452 The same youth leaders present at the meetings
– BROWN, CHAMALAN, Emmanuel BOR and Kimei BOR – also took an active part in the attack on Kiambaa.453
g) Kapsabet
192. Kalenjin youth and other ODM supporters started setting up roadblocks around Kapsabet prior to launching their attack on the pro-PNU residents of the town.454 Kapsabet had been identified as a target town well before the commencement of the PEV.455
193. The attack started once the election results had been announced. Attackers were spurred on by SANG’s radio broadcast on 31 December 2007 which called upon ODM supporters to demonstrate and fight for their rights, announcing that the
“war” had started.456
194. What ensued in Kapsabet was a spree of looting and burning of houses belonging to Kikuyu and PNU supporters. Kalenjin PNU supporters were also targeted by the youth.457 Kalenjin attackers, some armed with machetes, started attacking.458 The attacks were pre-planned: houses and businesses which had been singled out as belonging to PNU supporters were pointed out by local Kalenjin perpetrators, and looted and burned. Those which belonged to Kalenjins were spared.459 Eyewitnesses saw Kalenjin youth pour petrol on pre-selected houses, igniting them, burning them to the ground.460 Property was looted and burned; people were injured and killed as a result.461
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195. Kalenjin attackers searched the houses of Kapsabet during the night, hunting for Kikuyu and PNU supporters, in order to expel them from the town.462 PNU supporters had no choice but to flee their homes.463 One witness fled her home, hoping to seek refuge at the Kapsabet police station. On her way, her entourage encountered Kalenjin-manned roadblocks armed with rungus and stones; the guards told them that they were looking for Kikuyu to “burn up” and that the Kikuyu had been warned but they did not listen so would “go in ashes.” The same witness was taunted and spat on, being labelled a “black snake” for being Kikuyu.464
196. Thousands fled to the Kapsabet police station, looking for protection.465
However even there, they were not safe. ODM supporters advanced on the police station and threatened to burn it down as it was housing Kikuyu.466 Those displaced fled once more – many from Kapsabet finally finding refuge from their attackers at the Eldoret Showground along with tens of thousands of other displaced PNU supporters.467
197. Many of those displaced from their homes never returned to Kapsabet. As one witness realised “We knew that the purpose of the attacks was to get rid of the
Kikuyu and evict them from Kapsabet forever.”468
198. RUTO himself incited violence at a rally preceding the PEV in Kapsabet,469 and singled it out as a target for attack.470 Kalenjin leaders associated with RUTO incited violence against Kikuyu during the PEV.471 Witnesses implicate RUTO associates Ishmael CHOGE and Abdi KETER as being leaders in the attack on
Kapsabet.472 Both were present at planning meetings in Kapsabet prior to the PEV.473
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Farouk KIBET was tasked by RUTO to visit the Kalenjin warriors in Kapsabet during the PEV.474 SANG contributed to the attack on Kapsabet by broadcasting instructions to the Kalenjin attackers.475
h) Nandi Hills town
199. Nandi Hills town was singled out as a target of attack prior to commencement of the PEV476 - the town itself was home to many businesses and houses owned by
Kikuyu.477 Tension started to mount not long after the election took place, before results were announced, and PNU supporters started fleeing Nandi Hills.478
Witnesses heard traditional Kalenjin war cries before the attack.479
200. Houses and businesses belonging to PNU supporters were looted and burned to the ground.480 SANG helped coordinate the attack by broadcasting instructions to attackers.481 As per his direction, roadblocks in and around Nandi Hills town were erected and manned by Kalenjin youth, preventing PNU supporters from escaping.482 Some managed to escape Nandi Hills town, but others were unable to do so and were killed.483 Food and money was supplied to Kalenjin warriors and other
ODM supporters in and around Nandi Hills town, to sustain the attacks.484
201. The people of Nandi Hills town had no choice but to flee and seek refuge,485 many were permanently displaced according to the plan devised by RUTO to
“uproot the weeds” there,486 some never returning.487
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202. RUTO himself led an ODM rally in Nandi Hills town during his election campaign, where he spoke about expulsion of Kikuyu from the area,488 and singled it out as a target for attack during the PEV.489 Network members who attended planning meetings were also instrumental in the actual execution of the attack on
Nandi Hills town during the PEV, including Samson CHERAMBOSS.490 SANG broadcast instructions as to which roads to close and which vehicles were to be stopped.491
CONCLUSION
203. The evidence in the foregoing paragraphs establishes that RUTO and SANG are criminally responsible, as charged, for the crimes against humanity of murder, deportation or forcible transfer, and persecution in the locations of Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town, and Nandi Hills town, between on or about 30 December 2007 to 16 January
2008, as specified in Counts 1 to 6 in the charges against the Accused.
Fatou Bensouda, Prosecutor
Dated this 9th September 2013
At The Hague, The Netherlands
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