Yesterday the International Criminal Court at The Hague reduced the “Ocampo Six” to the “Ocampo Four”.
It confirmed charges against four of the six Kenyans charged with crimes against humanity following the 2008 post-election violence.
Deputy Prime Minister and minister of Finance Uhuru Kenyatta, former Higher Education minister William Ruto, Head of Civil Service Francis Muthaura, and Kass FM programmes chief Joshua arap Sang might have to defend themselves at the court.
Former Police chief Maj-Gen Hussein Ali and suspended Industrialisation minister Henry Kosgey were let off the hook.
The four are appealing, and the ICC Chief Prosecutor, as he usually does, will probably appeal the decision in favour of Mr Ali and Mr Kosgey.
Whatever happens, all the four were merely players in the great political drama of Kenya that will continue years after they are off the political scene and have been forgotten.
This is because one of the many ways to understand the ICC case is to reflect on the big Kenyan drama.
Kenya’s history of the last 100 year has produced several key currents, which all played out in the ICC case. Two of them were on play yesterday.
British colonialism and white settlement was particularly devastating for Central Kenya. They
resulted in massive displacements of the people from their land and an intense cultural struggle that led to founding the first independent churches in Africa and the bitter Mau Mau rebellion.
From an outsider’s reading of Kenya’s history and discussion with the more reflective individuals
from Central Kenya today, this history has produced, first, a near permanent millennial movement in the Mountain region (which the outlawed Mungiki sect that was allegedly mobilised by Uhuru for attacks in the Rift Valley loosely represents).
Secondly, it makes the colonial experience a deeply felt form of invasion for Central Kenya. It seems to drive the region to hanker for a Messiah, a Saviour who will restore to the children of the House of Mumbi the lands of their ancestors.
The Mountain region has never really found the perfect Messiah. In some ways Uhuru seemed to fill that void during the height of the chaos.
Whether Uhuru survives or not, the current that propelled him to power will not die out. There will likely be more Messiahs from Central Kenya, and there will be a lot more successor movements to Mungiki.
The other side of this complex tango is in the Rift Valley. While the Central Kenya psyche is both
driven and distorted by alienation, the Rift Valley’s is fuelled by dispossession.
From wherever colonialism displaced Kenyans, it seemed to send most of them to the then vast and fertile hills and valleys of the Rift.
The notion that the “immigrant” Kenyans were pioneer Internally Displaced Persons (IDPs) who
would eventually go back when calm returned to their villages, and return the places they had settled back to the “rightful owners” seems to have been bubbling underneath the Rift Valley for decades.
There is an inescapable sense of self-righteous right to repossession one gets from even the most
left-wing liberal Rift Valleyian when it comes to the region’s land, and the place of the other Kenyans who settled there.
Whether or not they see themselves that way, people like Ruto have about them the appeal of a Robinhood. Designer rebels crusading to repossess the commons for their people, who have been driven to suffer in the woods by grabbing outsiders.
For this historical reason, there is now in Rift Valley a market for a heroic Robinhood, a protector of the Nilotes’ pastures against acquisitive Bantu hordes.
twitter: @cobbo3
12 January, 2012
Can ICC Prosecutions Stem Electoral Violence?
With Kenyan and now Ivory Coast suspects charged, some commentators see international court as deterrent to political violence.
By Timothy Chepsoi
The arrest of the former president of Ivory Coast, Laurent Gbagbo, last week, means the International Criminal Court, ICC, has now charged leading officials from two African states with orchestrating violence following elections.
The ICC cases in Kenya and Ivory Coast pose the question whether orchestrated electoral violence could be a thing of the past in Africa.
The ICC has summoned six Kenyan public figures, including the deputy prime minister and the former police commissioner, who face charges of crimes against humanity for the violence that erupted after the country’s 2007 presidential polls.
Approximately 1,100 people were killed and over 3,000 injured during violent uprisings that were eventually halted by a power-sharing deal between the Orange Democratic Movement, ODM, and the Party of National Unity, PNU in early 2008.
The former Ivory Coast leader Gbagbo is charged with four counts of crimes against humanity, including murder and rape allegedly perpetrated against civilians in Abidjan and the west of the country between December 2010 and April 2011, as he refused to cede power to the incoming president, Alassane Outarra.
Experts believe the action the ICC has taken in Kenya and Ivory Coast will go a long way towards deterring future unrest on the back of elections in Africa. However, both countries will need to carry out long-term reforms to underpin the deterrent value of criminal justice.
“The ICC intervention in Kenya and [Ivory Coast] can show how international justice has a positive impact on trying to address some of the consequences of electoral frauds and disputes,” said David Donat Cattin of the non-government group Parliamentarians for Global Action.
He also pointed to the need for countries to conduct their own criminal investigations alongside those of the ICC in order to complete the justice process – something Kenya has so far failed to do.
“In [Ivory Coast] the statements of [President] Outarra are really good, because he is saying he is going to investigate the crimes of Gbagbo and other economic crimes, whereas he will leave it to the ICC to investigate [alleged] war crimes and crimes against humanity,” Donat Cattin said.
Experts believe that as a result of the ICC’s intervention in Kenya, there is less likelihood of a repeat of the systematic, planned violence seen in 2007.
“If, in another election, [Kenya’s leaders] are going to plan or to organise or to finance people to engage in criminal activity the fact that you are likely to be prosecuted at the international level is going to act as a deterrent,” Nina Okuta, senior human rights officer at Kenya National Commission on Human Rights, said.
The summoning of six Kenyan suspects to The Hague appears to have calmed the febrile political atmosphere in the country, but more lasting effects will only become apparent once the charges against them are confirmed, and if convictions are secured.
Another constraint on the deterrent factor of cases brought before the ICC is that the court’s reach is limited – it seeks to prosecute only those who are held most responsible for crimes. In Kenya, only the six most senior alleged perpetrators have been brought before the court, so that hundreds if not thousands of others will escape similar legal action.
“In the long term, [deterrence] could be a problem. We can’t hope that the court is going to provide a solution,” Okuta said.
In Ivory Coast, critics have accused the ICC of missing an opportunity to prevent the atrocities committed in 2010 by failing to intervene earlier.
The ICC gained jurisdiction in the Ivory Coast in 2003 following the internal armed conflict that split Ivory Coast in two, but it did not take action against those responsible for abuses.
“The ICC didn’t intervene and wasn’t seen as much of a threat [in 2010],” Donat Cattin said. “Maybe the ICC could have had a much more preventive and dissuasive role [in the 2010 violence] if it had intervened in the previous [2003] conflict.
“The sooner international justice can intervene, the better the impact is on the leaders on the ground, who receive the warning that certain acts of violence are intolerable and should not be committed any more.”
The ICC has also attracted criticism for not intervening even-handedly in all the countries where it has jurisdiction and where prosecutable crimes may have taken place.
Kenya was the first case in which ICC prosecutor Luis Moreno-Ocampo used his powers to initiate an investigation, without the conflict being referred either by the state itself or by the United Nations Security Council.
“If this [deterrent factor] is to be continued and sustained, it needs the ICC to be credible, to be persistent, to be coherent, to be consistent, to intervene in all situations in a similar way, [and] to apply justice in a way that is predictable,” Donat Cattin said.
Experts are cautious about the extent to which ICC prosecutions alone will deter future atrocities.
“We have, in various contexts where conflicts have occurred, the realisation that prosecutions in and of themselves are not sufficient to deter criminal conduct within a society,” Christine Alai of the International Centre for Transitional Justice in Kenya said.
“While [impunity] thrives at the top levels of the executive, that impunity also thrives among us, as members of society. So addressing the question of impunity at the topmost level is critical, but other measures must also be put in place to guarantee that there will not be a recurrence of violations or violence every electoral year.”
In Kenya, the real deterrent against future electoral violence lies within the country’s own legislative structures. The 2007-08 violence took place amid a lack of a robust electoral and judicial systems to settle disputes and thus prevent violence, experts say.
“A country with a trusted judicial system and a trusted electoral management body is very likely to have very peaceful elections. because people know and trust the system,” Njeri Kabeberi, executive director of the Centre for Multi-Party Democracy in Kenya, said. “In Kenya we had a crisis because the electoral management body failed the country, but also our judicial system was not to be trusted. So anyone with a dispute could not trust that going to court was going to assist them.”
In addition to ICC intervention, reforms to national systems should reduce the risk of violence and lower the incendiary power of elections, in which the stakes are high for those in, or seeking, office.
Kenya’s new constitution, passed in August 2010, makes provision for some of these reforms, including changes to the judiciary and the security services, and devolution of some powers from the central executive to county level. According to Alai, “If we can begin to achieve a level of reforms within those institutions, then we begin to guarantee our people that we will never again have to face similar occurrences in our country.”
Alai argues that it is Kenya and other states, and not ultimately the ICC, that must act to prevent abuses.
“The bulk of the work remains to be done, and it is not the responsibility of the ICC,” she said “It is the responsibility of the government of Kenya.”
Timothy Chepsoi is an IWPR-trained journalist in Nairobi.
http://iwpr.net/report-news/can-icc-prosections-stem-electoral-violence
By Timothy Chepsoi
The arrest of the former president of Ivory Coast, Laurent Gbagbo, last week, means the International Criminal Court, ICC, has now charged leading officials from two African states with orchestrating violence following elections.
The ICC cases in Kenya and Ivory Coast pose the question whether orchestrated electoral violence could be a thing of the past in Africa.
The ICC has summoned six Kenyan public figures, including the deputy prime minister and the former police commissioner, who face charges of crimes against humanity for the violence that erupted after the country’s 2007 presidential polls.
Approximately 1,100 people were killed and over 3,000 injured during violent uprisings that were eventually halted by a power-sharing deal between the Orange Democratic Movement, ODM, and the Party of National Unity, PNU in early 2008.
The former Ivory Coast leader Gbagbo is charged with four counts of crimes against humanity, including murder and rape allegedly perpetrated against civilians in Abidjan and the west of the country between December 2010 and April 2011, as he refused to cede power to the incoming president, Alassane Outarra.
Experts believe the action the ICC has taken in Kenya and Ivory Coast will go a long way towards deterring future unrest on the back of elections in Africa. However, both countries will need to carry out long-term reforms to underpin the deterrent value of criminal justice.
“The ICC intervention in Kenya and [Ivory Coast] can show how international justice has a positive impact on trying to address some of the consequences of electoral frauds and disputes,” said David Donat Cattin of the non-government group Parliamentarians for Global Action.
He also pointed to the need for countries to conduct their own criminal investigations alongside those of the ICC in order to complete the justice process – something Kenya has so far failed to do.
“In [Ivory Coast] the statements of [President] Outarra are really good, because he is saying he is going to investigate the crimes of Gbagbo and other economic crimes, whereas he will leave it to the ICC to investigate [alleged] war crimes and crimes against humanity,” Donat Cattin said.
Experts believe that as a result of the ICC’s intervention in Kenya, there is less likelihood of a repeat of the systematic, planned violence seen in 2007.
“If, in another election, [Kenya’s leaders] are going to plan or to organise or to finance people to engage in criminal activity the fact that you are likely to be prosecuted at the international level is going to act as a deterrent,” Nina Okuta, senior human rights officer at Kenya National Commission on Human Rights, said.
The summoning of six Kenyan suspects to The Hague appears to have calmed the febrile political atmosphere in the country, but more lasting effects will only become apparent once the charges against them are confirmed, and if convictions are secured.
Another constraint on the deterrent factor of cases brought before the ICC is that the court’s reach is limited – it seeks to prosecute only those who are held most responsible for crimes. In Kenya, only the six most senior alleged perpetrators have been brought before the court, so that hundreds if not thousands of others will escape similar legal action.
“In the long term, [deterrence] could be a problem. We can’t hope that the court is going to provide a solution,” Okuta said.
In Ivory Coast, critics have accused the ICC of missing an opportunity to prevent the atrocities committed in 2010 by failing to intervene earlier.
The ICC gained jurisdiction in the Ivory Coast in 2003 following the internal armed conflict that split Ivory Coast in two, but it did not take action against those responsible for abuses.
“The ICC didn’t intervene and wasn’t seen as much of a threat [in 2010],” Donat Cattin said. “Maybe the ICC could have had a much more preventive and dissuasive role [in the 2010 violence] if it had intervened in the previous [2003] conflict.
“The sooner international justice can intervene, the better the impact is on the leaders on the ground, who receive the warning that certain acts of violence are intolerable and should not be committed any more.”
The ICC has also attracted criticism for not intervening even-handedly in all the countries where it has jurisdiction and where prosecutable crimes may have taken place.
Kenya was the first case in which ICC prosecutor Luis Moreno-Ocampo used his powers to initiate an investigation, without the conflict being referred either by the state itself or by the United Nations Security Council.
“If this [deterrent factor] is to be continued and sustained, it needs the ICC to be credible, to be persistent, to be coherent, to be consistent, to intervene in all situations in a similar way, [and] to apply justice in a way that is predictable,” Donat Cattin said.
Experts are cautious about the extent to which ICC prosecutions alone will deter future atrocities.
“We have, in various contexts where conflicts have occurred, the realisation that prosecutions in and of themselves are not sufficient to deter criminal conduct within a society,” Christine Alai of the International Centre for Transitional Justice in Kenya said.
“While [impunity] thrives at the top levels of the executive, that impunity also thrives among us, as members of society. So addressing the question of impunity at the topmost level is critical, but other measures must also be put in place to guarantee that there will not be a recurrence of violations or violence every electoral year.”
In Kenya, the real deterrent against future electoral violence lies within the country’s own legislative structures. The 2007-08 violence took place amid a lack of a robust electoral and judicial systems to settle disputes and thus prevent violence, experts say.
“A country with a trusted judicial system and a trusted electoral management body is very likely to have very peaceful elections. because people know and trust the system,” Njeri Kabeberi, executive director of the Centre for Multi-Party Democracy in Kenya, said. “In Kenya we had a crisis because the electoral management body failed the country, but also our judicial system was not to be trusted. So anyone with a dispute could not trust that going to court was going to assist them.”
In addition to ICC intervention, reforms to national systems should reduce the risk of violence and lower the incendiary power of elections, in which the stakes are high for those in, or seeking, office.
Kenya’s new constitution, passed in August 2010, makes provision for some of these reforms, including changes to the judiciary and the security services, and devolution of some powers from the central executive to county level. According to Alai, “If we can begin to achieve a level of reforms within those institutions, then we begin to guarantee our people that we will never again have to face similar occurrences in our country.”
Alai argues that it is Kenya and other states, and not ultimately the ICC, that must act to prevent abuses.
“The bulk of the work remains to be done, and it is not the responsibility of the ICC,” she said “It is the responsibility of the government of Kenya.”
Timothy Chepsoi is an IWPR-trained journalist in Nairobi.
http://iwpr.net/report-news/can-icc-prosections-stem-electoral-violence
Kenya Accused of Hampering ICC Outreach
Some believe court must bolster activities on the ground to counter politicisation of cases.
By IWPR contributor
Amid an intensifying campaign by supporters of six senior public figures facing charges at the International Criminal Court, ICC, the Kenyan government is being accused of frustrating the court’s outreach efforts inside the country.
Meanwhile, questions have been raised about the success of the ICC outreach programme, and about whether its intervention in Kenya has been sufficiently robust.
Local and international rights groups say that while the ICC started its outreach programme in Kenya at a fairly early stage, the delay in establishing a permanent local office left a gap that has been exploited by politicians allied to some of the suspects.
There is also concern that the ICC outreach unit is not receiving the political support it needs to help correct gross misconceptions about the court’s work among communities affected by the post-election violence of 2007-08.
At least 1,100 people died and 3,500 were injured during two months of violent unrest that followed a disputed presidential election in December 2007.
The court has charged six prominent figures, including deputy prime minister Uhuru Kenyatta and former education minister William Ruto, with crimes against humanity for their alleged role in planning the attacks.
Two cases have been filed by the prosecutor, with three suspects in each.
The deputy head of the Kenyan National Commission on Human Rights, Hassan Omar Hassan, says a section of the Kenyan government has been deliberately blocking the ICC’s attempts to give the public accurate information about matters relating to the two cases.
“We raised concerns about [outreach activities] from the outset, after we realised that political actors involved in the two cases were misinforming the public on the impact and consequences of the initial appearances and confirmation of charges stages [of court proceedings],” Hassan said.
The court’s outreach activities started in Kenya in December 2009 after the prosecutor, Luis Moreno-Ocampo, requested authorisation to launch an investigation into the 2007-08 violence. The outreach office was not set up until August this year, following a visit to Kenya by the ICC’s registrar, Silvana Arbia.
The International Centre for Policy and Conflict, ICPC, a Kenyan non-government organisation working on transitional justice and conflict resolution, says the ICC’s failure to establish an outreach office as soon as the investigation started meant local organisations were forced to step in, more often than not without adequate resources.
“Many NGO’s have received threats after being seen to be working closely with the ICC,” the ICPC’s executive director Ndungu Wainaina said.
Experts say that outreach activities alone are not the ultimate solution to the mass of misinformation and politicisation surrounding cases before the ICC, but they can help to counter the problem.
“We cannot say that outreach will automatically cure the politicisation, but it can make it harder to do that because if your everyday person on the ground already has information about the ICC process – that it is an independent judicial process – then it will be hard for people who want to spin it as a biased process to make their argument,” Elizabeth Evenson, senior counsel at the New York-based advocacy group Human Rights Watch, said.
Both of the Kenyan cases at the ICC involve high profile politicians, as well as the country’s former police commissioner. The ICC’s outreach coordinator in Kenya, Maria Mabinty Kamara, says these high-profile cases have attracted great interest in the court’s workings, but at times also misinformation.
A failed attempt by Vice-President Kalonzo Musyoka to lobby other African countries to support a deferral of the Kenyan cases is seen by some as a clear example of how the government is trying to undermine the ICC’s mandate.
President Mwai Kibaki has also been seen as taking sides by writing to ICC judges in a bid to exonerate one of the suspects, civil service chief Francis Muthaura, during the recent confirmation of charges hearings.
“This is a clear example of how the government does not in any way support the ICC,” Wainaina said.
Kenya’s justice minister Mutula Kilonzo admits the government is walking a tightrope – it is aware of the propaganda put out about the ICC cases, but is reluctant to engage in civic education for fear of being misunderstood, or accused of bias towards either victims or suspects.
“My mandate is to the victims and to the suspects,” he said. By engaging in civic education it might be construed to mean I am supporting one side [over the other] which is [far] from the truth,” Kilonzo said.
He strenuously rejected charges that the current coalition government, formed after the clashes ended in 2008, is itself hampering ICC outreach efforts.
“Those making such allegations are busybodies who don’t understand what the government has done in terms of cooperating with the ICC. We have agreed to all requests by the ICC registrar, including granting visas for their staff and facilitating the setting up of an office here in the country,” he said, noting that a special cabinet subcommittee had been set up to liaise with the court.
Amason Jeffa Kingi, another cabinet minister and a member of the ICC liaison subcommittee, disagreed. He said there were people in the cabinet who were obstructing the ICC process with a campaign to smear the court.
“While the position of the coalition government is that we will cooperate fully with the ICC, as demanded of us by the Rome Statute [the founding treaty], it is however unfortunate that some senior individuals in government issue statements that [call] into question the mandate of the ICC,” Kingi said.
Justice Minister Kilonzo acknowledges that there are deep-seated differences between the coalition partners regarding support for the ICC. After the suspects were named by the court, some officials publicly called on President Kibaki to withdraw Kenya from the Rome Statute. Kilonzo says such statements have sent out contradictory messages to the public as to whether the government fully supports the ICC.
In terms of outreach on the ground, some parts of Kenya that bore the brunt of the violence are barely aware of the court, despite outreach activities that began more than a year ago.
At the Mawingu Camp where more than 1,000 displaced families are still living three years after the violence, people say they have not seen any of the court’s officers in the area.
“We have been waiting to see these officials and talk to them, but none have been here so far. Politicians come here and demonise the ICC, and we have so many questions but no answers are forthcoming from Ocampo and his team,” Rose Wanjiku, chairperson of the Mawingu Camp, said.
The outreach office says it faces financial challenges and cannot do everything expected of it all at once. “Most of the funds we had were directed to media initiatives, but it is not as much as we would have liked,” Kamara said.
Nevertheless, she says, the outreach office has been able to engage with some local NGOs, media and leaders of affected communities to promote a better understanding of the court process.
The ICC office has yet to start the next phase of outreach activities, which will be aimed at explaining what the outcome of the confirmation of charges hearings means, correcting misconceptions, and addressing the expectations of victims and the wider Kenyan public.
“The Kenyan case is one of the earliest interventions in terms of outreach initiatives,” Kamara said. “Unlike other situations where it took a lot of time before the [ICC’s] outreach programme was initiated, for Kenya we have been closely working in line with the judicial process.
Right from the outset when the prosecutor launched investigations, we closely followed what the media was reporting, and we realised the level of inaccuracies that needed to be addressed.”
The ICPC says the ICC office will have to engage with the public much more effectively if its outreach activities are to have any impact amid the challenges that face the court.
“In Uganda and Democratic Republic of Congo there has been a robust and open engagement of the victims. But in Kenya the situation has been completely different. One reason why there is so much misinformation is because the outreach unit [of the ICC] has not been very proactive in providing information to the general public,” Wainaina said.
Human Rights Watch has praised the ICC for setting up an outreach office in Kenya at a relatively early stage compared with other countries where the court has charged suspects. It believes the challenge now is to ensure that the office builds on some of the lessons learnt from earlier efforts elsewhere.
“We acknowledge that there are of course security challenges, but the team must now start having face-to-face meetings in places that were most affected by the violence,” Evenson said. “The Kenyan team can learn from the Democratic Republic of Congo where the ICC has initiated listening clubs among womenfolk. These clubs have had a huge impact in informing and stimulating debate among the public.”
Other international human rights groups such as the Open Society Justice Initiative believe that the ICC outreach team in Kenya does not need to look far for lessons on how to carry out a successful programme.
“Sierra Leone was a huge success. It successfully engaged Sierra Leoneans about the work of the court generally, and the trial process,” said Alpha Sessay, of the Open Society Justice Network. “The Sierra Leone model can successfully be adopted by the Kenyan outreach team as it is largely acknowledged as a blueprint for how such courts can work with the community.”
Kamara says the outreach office is expecting more funds soon to conduct what she calls a “massive mass outreach campaign” to prepare the ground for the verdict of the confirmation of charges hearings.
“One of our greatest challenges will be to manage the huge expectations of the public regarding this phase of the Kenyan case. We will have to clarify what the court can do at this stage, and what it cannot do,” she said.
By IWPR contributor
Amid an intensifying campaign by supporters of six senior public figures facing charges at the International Criminal Court, ICC, the Kenyan government is being accused of frustrating the court’s outreach efforts inside the country.
Meanwhile, questions have been raised about the success of the ICC outreach programme, and about whether its intervention in Kenya has been sufficiently robust.
Local and international rights groups say that while the ICC started its outreach programme in Kenya at a fairly early stage, the delay in establishing a permanent local office left a gap that has been exploited by politicians allied to some of the suspects.
There is also concern that the ICC outreach unit is not receiving the political support it needs to help correct gross misconceptions about the court’s work among communities affected by the post-election violence of 2007-08.
At least 1,100 people died and 3,500 were injured during two months of violent unrest that followed a disputed presidential election in December 2007.
The court has charged six prominent figures, including deputy prime minister Uhuru Kenyatta and former education minister William Ruto, with crimes against humanity for their alleged role in planning the attacks.
Two cases have been filed by the prosecutor, with three suspects in each.
The deputy head of the Kenyan National Commission on Human Rights, Hassan Omar Hassan, says a section of the Kenyan government has been deliberately blocking the ICC’s attempts to give the public accurate information about matters relating to the two cases.
“We raised concerns about [outreach activities] from the outset, after we realised that political actors involved in the two cases were misinforming the public on the impact and consequences of the initial appearances and confirmation of charges stages [of court proceedings],” Hassan said.
The court’s outreach activities started in Kenya in December 2009 after the prosecutor, Luis Moreno-Ocampo, requested authorisation to launch an investigation into the 2007-08 violence. The outreach office was not set up until August this year, following a visit to Kenya by the ICC’s registrar, Silvana Arbia.
The International Centre for Policy and Conflict, ICPC, a Kenyan non-government organisation working on transitional justice and conflict resolution, says the ICC’s failure to establish an outreach office as soon as the investigation started meant local organisations were forced to step in, more often than not without adequate resources.
“Many NGO’s have received threats after being seen to be working closely with the ICC,” the ICPC’s executive director Ndungu Wainaina said.
Experts say that outreach activities alone are not the ultimate solution to the mass of misinformation and politicisation surrounding cases before the ICC, but they can help to counter the problem.
“We cannot say that outreach will automatically cure the politicisation, but it can make it harder to do that because if your everyday person on the ground already has information about the ICC process – that it is an independent judicial process – then it will be hard for people who want to spin it as a biased process to make their argument,” Elizabeth Evenson, senior counsel at the New York-based advocacy group Human Rights Watch, said.
Both of the Kenyan cases at the ICC involve high profile politicians, as well as the country’s former police commissioner. The ICC’s outreach coordinator in Kenya, Maria Mabinty Kamara, says these high-profile cases have attracted great interest in the court’s workings, but at times also misinformation.
A failed attempt by Vice-President Kalonzo Musyoka to lobby other African countries to support a deferral of the Kenyan cases is seen by some as a clear example of how the government is trying to undermine the ICC’s mandate.
President Mwai Kibaki has also been seen as taking sides by writing to ICC judges in a bid to exonerate one of the suspects, civil service chief Francis Muthaura, during the recent confirmation of charges hearings.
“This is a clear example of how the government does not in any way support the ICC,” Wainaina said.
Kenya’s justice minister Mutula Kilonzo admits the government is walking a tightrope – it is aware of the propaganda put out about the ICC cases, but is reluctant to engage in civic education for fear of being misunderstood, or accused of bias towards either victims or suspects.
“My mandate is to the victims and to the suspects,” he said. By engaging in civic education it might be construed to mean I am supporting one side [over the other] which is [far] from the truth,” Kilonzo said.
He strenuously rejected charges that the current coalition government, formed after the clashes ended in 2008, is itself hampering ICC outreach efforts.
“Those making such allegations are busybodies who don’t understand what the government has done in terms of cooperating with the ICC. We have agreed to all requests by the ICC registrar, including granting visas for their staff and facilitating the setting up of an office here in the country,” he said, noting that a special cabinet subcommittee had been set up to liaise with the court.
Amason Jeffa Kingi, another cabinet minister and a member of the ICC liaison subcommittee, disagreed. He said there were people in the cabinet who were obstructing the ICC process with a campaign to smear the court.
“While the position of the coalition government is that we will cooperate fully with the ICC, as demanded of us by the Rome Statute [the founding treaty], it is however unfortunate that some senior individuals in government issue statements that [call] into question the mandate of the ICC,” Kingi said.
Justice Minister Kilonzo acknowledges that there are deep-seated differences between the coalition partners regarding support for the ICC. After the suspects were named by the court, some officials publicly called on President Kibaki to withdraw Kenya from the Rome Statute. Kilonzo says such statements have sent out contradictory messages to the public as to whether the government fully supports the ICC.
In terms of outreach on the ground, some parts of Kenya that bore the brunt of the violence are barely aware of the court, despite outreach activities that began more than a year ago.
At the Mawingu Camp where more than 1,000 displaced families are still living three years after the violence, people say they have not seen any of the court’s officers in the area.
“We have been waiting to see these officials and talk to them, but none have been here so far. Politicians come here and demonise the ICC, and we have so many questions but no answers are forthcoming from Ocampo and his team,” Rose Wanjiku, chairperson of the Mawingu Camp, said.
The outreach office says it faces financial challenges and cannot do everything expected of it all at once. “Most of the funds we had were directed to media initiatives, but it is not as much as we would have liked,” Kamara said.
Nevertheless, she says, the outreach office has been able to engage with some local NGOs, media and leaders of affected communities to promote a better understanding of the court process.
The ICC office has yet to start the next phase of outreach activities, which will be aimed at explaining what the outcome of the confirmation of charges hearings means, correcting misconceptions, and addressing the expectations of victims and the wider Kenyan public.
“The Kenyan case is one of the earliest interventions in terms of outreach initiatives,” Kamara said. “Unlike other situations where it took a lot of time before the [ICC’s] outreach programme was initiated, for Kenya we have been closely working in line with the judicial process.
Right from the outset when the prosecutor launched investigations, we closely followed what the media was reporting, and we realised the level of inaccuracies that needed to be addressed.”
The ICPC says the ICC office will have to engage with the public much more effectively if its outreach activities are to have any impact amid the challenges that face the court.
“In Uganda and Democratic Republic of Congo there has been a robust and open engagement of the victims. But in Kenya the situation has been completely different. One reason why there is so much misinformation is because the outreach unit [of the ICC] has not been very proactive in providing information to the general public,” Wainaina said.
Human Rights Watch has praised the ICC for setting up an outreach office in Kenya at a relatively early stage compared with other countries where the court has charged suspects. It believes the challenge now is to ensure that the office builds on some of the lessons learnt from earlier efforts elsewhere.
“We acknowledge that there are of course security challenges, but the team must now start having face-to-face meetings in places that were most affected by the violence,” Evenson said. “The Kenyan team can learn from the Democratic Republic of Congo where the ICC has initiated listening clubs among womenfolk. These clubs have had a huge impact in informing and stimulating debate among the public.”
Other international human rights groups such as the Open Society Justice Initiative believe that the ICC outreach team in Kenya does not need to look far for lessons on how to carry out a successful programme.
“Sierra Leone was a huge success. It successfully engaged Sierra Leoneans about the work of the court generally, and the trial process,” said Alpha Sessay, of the Open Society Justice Network. “The Sierra Leone model can successfully be adopted by the Kenyan outreach team as it is largely acknowledged as a blueprint for how such courts can work with the community.”
Kamara says the outreach office is expecting more funds soon to conduct what she calls a “massive mass outreach campaign” to prepare the ground for the verdict of the confirmation of charges hearings.
“One of our greatest challenges will be to manage the huge expectations of the public regarding this phase of the Kenyan case. We will have to clarify what the court can do at this stage, and what it cannot do,” she said.
Kenyan Police Criticised Over Election Violence Cases
Police insist they will continue looking into alleged abuses despite concerns about lack of capacity and political will.
By IWPR contributor
Campaigners seeking justice for the perpetrators of Kenya's 2007-08 post-election violence have raised serious concerns about the way the national police force has investigated cases, amid allegations of government interference.
The Kenyan police say they are actively investigating 400 out of 6,000 reported cases stemming from the violence.
At least 1,100 people died and 3,500 were injured after a presidential election in December 2007 as violence erupted between supporters of the Party of National Unity, PNU, and the Orange Democratic Movement, ODM, which are now in a coalition government.
Rights groups say that the police investigations lack credibility and that the parties allegedly behind the chaos have colluded to circumvent justice.
"Our investigations have revealed that a huge number of youths who were being held in police cells for various crimes related to the violence were released unconditionally after a deal was struck between the PNU and ODM," Neela Ghoshal, a researcher with the New York-based advocacy group Human Rights Watch, told IWPR.
The allegations have been strongly denied by government spokesman Alfred Mutua, who says no such agreement ever existed.
"Anyone who was set free at that time was released by the courts. When a crime is committed, you cannot decide its outcome using politics,” he said.
But government chief whip Johnstone Muthama acknowledges that such a deal was made, although he accepts this was ill- advised.
"It was wrong for those who were arrested to have been released without following the due process of the law," he said.
Six prominent public figures, including the deputy prime minister, Uhuru Kenyatta, and former education minister, William Ruto, have been charged with orchestrating the violence by the International Criminal Court, ICC, in The Hague.
The international community has called on Kenya to prosecute middle- and lower-level figures accused of involvement in the violence, and try them at a special tribunal in Kenya as they will not be brought before the ICC.
Legal experts are calling for investigations to be halted until much-needed reforms of the police force are carried through. Kenya's new constitution, voted into law in August 2010, provides for such reforms.
"No one has got any confidence that [this police force] can carry out credible investigations or prosecute anyone [for post-election violence]. We have to wait for police reforms," Paul Muite, a human rights lawyer and former legislator, said.
Kenya's director of public prosecutions, Keriako Tobiko, says that even as police pursue the 400 ongoing investigations, 550 more have already reached court. However, he concedes that some of these cases have been thrown out.
"Of the 550 cases taken to court, 258 have been concluded and the accused persons found guilty and sentenced. However, 87 suspects were acquitted due to lack of evidence while a further 138 cases were withdrawn," Tobiko said.
Rights groups have raised concerns as to whether the cases are being investigated properly and fairly.
"There are serious problems with police investigations," Ghoshal said. "Victims, magistrates and state counsels have all expressed dissatisfaction at police investigations of these cases. We have had instances where police have failed to carry out identification parades, police files have gone missing or were lost, and the list [of irregularities] is just endless."
In a report released on November 9, Human Rights Watch questions whether the cases cited by the department of public prosecutions are in fact related to the 2007-08 violence.
"After visiting most of the law courts where these cases were heard, we believe that only ten cases that the [director of public prosecutions] claims are before courts are actually related to the violence," Ghoshal said. "But at least two murder cases in Nakuru and Kericho towns that were related to the violence resulted in convictions."
The report also underlines that no member of the Kenyan police has been brought to justice for the violence, despite an estimated 962 police shootings and dozens of rapes in the aftermath of the 2007 election.
It is unclear why information about ongoing and completed cases is not readily available.
Florence Jaoko, chair of the Kenya National Commission on Human Rights, said attempts by organisations like hers to receive updates on the investigations have proved futile.
"These investigations are not genuine, as it has taken over four years for them to begin," she said. "At the local level, we have never had information on such cases. It is important for the state to give that information to the public, if at all they are investigating them."
Soon after the violence, Jaoko’s commission released a report called “On the Brink of the Precipice” accusing several high-ranking former and serving politicians of being behind the violence.
Jaoko says these individuals are among those who should be prosecuted in Kenya, if the authorities are "really serious [about] fighting impunity".
Some argue that the police cases are merely a publicity stunt aimed at persuading the ICC to hand back the six suspects to be tried in Kenya.
"There is no evidence that these cases are genuine," said Ghoshal. "They are but a show in front of the International Criminal Court to try and convince them that the Kenyan authorities are doing something about the violence."
Earlier this year, Kenya sought to convince the ICC that it was prosecuting cases of post-election violence itself, and that there was no need for the court put the six suspects on trial. Judges in The Hague rejected the appeal.
In August, two of the six suspects facing charges at the ICC recorded statements with Kenya’s criminal investigations department, which said it was conducting parallel investigations to those at the international court.
Former cabinet ministers Henry Kosgey and William Ruto recorded statements just weeks before appearing at the ICC for confirmation-of-charges hearings in September.
The Kenyan police reject claims that their efforts are not genuine, though they admits that the investigations have taken longer than anticipated. They say they will not back down from investigating the cases, most of which involve alleged lower-level perpetrators of violence.
"These [investigations] must of necessity be a slow process, but with persistent and professional handling I know we shall get there. We can't sit back and let people who killed others and danced before the cameras walk away. They have to be prosecuted," police spokesman Eric Kiraithe said.
The chairman of the National Task Force on Police Reforms, retired judge Philip Ransley, supports investigations wider than those at the ICC. But he says the police force as it is currently constituted is unable to carry out these investigations.
"I expected police reforms to be well under way by now, but obviously they are going to take some time to complete. The criminal investigations department would have been better suited to investigate these cases, but until the reforms are under way, they cannot do very much," Justice Ransley said.
The task force he heads was appointed by President Mwai Kibaki in May 2009, following recommendations by a national commission of inquiry into the violence, chaired by Justice Philip Waki.
Tobiko, the director of public prosecutions, rejects claims that ongoing cases are just meant to impress the ICC, and says they will go on irrespective of the outcome of confirmation-of-charges hearings in The Hague.
In September 2011, Kenya's attorney general Githu Muigai led a high-ranking mission to The Hague to ask ICC prosecutor Luis Moreno-Ocampo to share the evidence he had on lower-level perpetrators. The request was quickly dismissed by Moreno-Ocampo.
Muite says the trip was a clear indication that the police had not conducted any investigations or gathered evidence to prosecute cases.
"The police should stop making these statements, as they are insulting to the intelligence of the Kenyan [people]," Muite said.
On December 5, former justice minister and member of parliament Martha Karua told the Kenya National Dialogue and Reconciliation Conference, chaired by former United Nations Secretary General, Kofi Annan, that no such investigations were ongoing, despite reports to the contrary from the police.
"Almost four years down the line, victims of the 2007 post-election violence are still crying [out] for justice and police are yet to start investigations or prosecute anyone," Karua said.
The Kenyan parliament has twice tried and failed to set up a local tribunal, with most members voting to have the cases taken to the ICC.
Despite repeated calls from rights groups and the international community, Tobiko says that Kenya does not require a special tribunal to prosecute middle- and lower-level suspects.
Kenya has now adopted the legal principles of the ICC's founding treaty, the Rome Statue, into its domestic code, allowing it in theory to prosecute war crimes, crimes against humanity and genocide in its own courts..
"With the reforms going on in the judiciary, I am quite confident that some of the cases can be tried in the local courts without much problem, especially considering that Kenya has enacted the International Crimes Act," Tobiko said.
But Human Rights Watch says the fact that some of the cases "amount to crimes against humanity" makes it impossible for the local courts to deal with them.
"Some of the crimes were planned in one area and then committed in another area. The local courts do not have the capacity to deal with these complexities, despite the ongoing reforms in the judiciary," Ghoshal said.
Pointing to the international support that has been provided to other justice mechanisms implemented in Kenya, such as the Truth, Justice and Reconciliation Commission, Ghoshal said,
"The local tribunal should have international input for them to be credible. At the moment, Kenyan institutions don't have the capacity to prosecute these cases, and they need international help."
http://iwpr.net/report-news/kenyan-police-criticised-over-election-violence-cases
By IWPR contributor
Campaigners seeking justice for the perpetrators of Kenya's 2007-08 post-election violence have raised serious concerns about the way the national police force has investigated cases, amid allegations of government interference.
The Kenyan police say they are actively investigating 400 out of 6,000 reported cases stemming from the violence.
At least 1,100 people died and 3,500 were injured after a presidential election in December 2007 as violence erupted between supporters of the Party of National Unity, PNU, and the Orange Democratic Movement, ODM, which are now in a coalition government.
Rights groups say that the police investigations lack credibility and that the parties allegedly behind the chaos have colluded to circumvent justice.
"Our investigations have revealed that a huge number of youths who were being held in police cells for various crimes related to the violence were released unconditionally after a deal was struck between the PNU and ODM," Neela Ghoshal, a researcher with the New York-based advocacy group Human Rights Watch, told IWPR.
The allegations have been strongly denied by government spokesman Alfred Mutua, who says no such agreement ever existed.
"Anyone who was set free at that time was released by the courts. When a crime is committed, you cannot decide its outcome using politics,” he said.
But government chief whip Johnstone Muthama acknowledges that such a deal was made, although he accepts this was ill- advised.
"It was wrong for those who were arrested to have been released without following the due process of the law," he said.
Six prominent public figures, including the deputy prime minister, Uhuru Kenyatta, and former education minister, William Ruto, have been charged with orchestrating the violence by the International Criminal Court, ICC, in The Hague.
The international community has called on Kenya to prosecute middle- and lower-level figures accused of involvement in the violence, and try them at a special tribunal in Kenya as they will not be brought before the ICC.
Legal experts are calling for investigations to be halted until much-needed reforms of the police force are carried through. Kenya's new constitution, voted into law in August 2010, provides for such reforms.
"No one has got any confidence that [this police force] can carry out credible investigations or prosecute anyone [for post-election violence]. We have to wait for police reforms," Paul Muite, a human rights lawyer and former legislator, said.
Kenya's director of public prosecutions, Keriako Tobiko, says that even as police pursue the 400 ongoing investigations, 550 more have already reached court. However, he concedes that some of these cases have been thrown out.
"Of the 550 cases taken to court, 258 have been concluded and the accused persons found guilty and sentenced. However, 87 suspects were acquitted due to lack of evidence while a further 138 cases were withdrawn," Tobiko said.
Rights groups have raised concerns as to whether the cases are being investigated properly and fairly.
"There are serious problems with police investigations," Ghoshal said. "Victims, magistrates and state counsels have all expressed dissatisfaction at police investigations of these cases. We have had instances where police have failed to carry out identification parades, police files have gone missing or were lost, and the list [of irregularities] is just endless."
In a report released on November 9, Human Rights Watch questions whether the cases cited by the department of public prosecutions are in fact related to the 2007-08 violence.
"After visiting most of the law courts where these cases were heard, we believe that only ten cases that the [director of public prosecutions] claims are before courts are actually related to the violence," Ghoshal said. "But at least two murder cases in Nakuru and Kericho towns that were related to the violence resulted in convictions."
The report also underlines that no member of the Kenyan police has been brought to justice for the violence, despite an estimated 962 police shootings and dozens of rapes in the aftermath of the 2007 election.
It is unclear why information about ongoing and completed cases is not readily available.
Florence Jaoko, chair of the Kenya National Commission on Human Rights, said attempts by organisations like hers to receive updates on the investigations have proved futile.
"These investigations are not genuine, as it has taken over four years for them to begin," she said. "At the local level, we have never had information on such cases. It is important for the state to give that information to the public, if at all they are investigating them."
Soon after the violence, Jaoko’s commission released a report called “On the Brink of the Precipice” accusing several high-ranking former and serving politicians of being behind the violence.
Jaoko says these individuals are among those who should be prosecuted in Kenya, if the authorities are "really serious [about] fighting impunity".
Some argue that the police cases are merely a publicity stunt aimed at persuading the ICC to hand back the six suspects to be tried in Kenya.
"There is no evidence that these cases are genuine," said Ghoshal. "They are but a show in front of the International Criminal Court to try and convince them that the Kenyan authorities are doing something about the violence."
Earlier this year, Kenya sought to convince the ICC that it was prosecuting cases of post-election violence itself, and that there was no need for the court put the six suspects on trial. Judges in The Hague rejected the appeal.
In August, two of the six suspects facing charges at the ICC recorded statements with Kenya’s criminal investigations department, which said it was conducting parallel investigations to those at the international court.
Former cabinet ministers Henry Kosgey and William Ruto recorded statements just weeks before appearing at the ICC for confirmation-of-charges hearings in September.
The Kenyan police reject claims that their efforts are not genuine, though they admits that the investigations have taken longer than anticipated. They say they will not back down from investigating the cases, most of which involve alleged lower-level perpetrators of violence.
"These [investigations] must of necessity be a slow process, but with persistent and professional handling I know we shall get there. We can't sit back and let people who killed others and danced before the cameras walk away. They have to be prosecuted," police spokesman Eric Kiraithe said.
The chairman of the National Task Force on Police Reforms, retired judge Philip Ransley, supports investigations wider than those at the ICC. But he says the police force as it is currently constituted is unable to carry out these investigations.
"I expected police reforms to be well under way by now, but obviously they are going to take some time to complete. The criminal investigations department would have been better suited to investigate these cases, but until the reforms are under way, they cannot do very much," Justice Ransley said.
The task force he heads was appointed by President Mwai Kibaki in May 2009, following recommendations by a national commission of inquiry into the violence, chaired by Justice Philip Waki.
Tobiko, the director of public prosecutions, rejects claims that ongoing cases are just meant to impress the ICC, and says they will go on irrespective of the outcome of confirmation-of-charges hearings in The Hague.
In September 2011, Kenya's attorney general Githu Muigai led a high-ranking mission to The Hague to ask ICC prosecutor Luis Moreno-Ocampo to share the evidence he had on lower-level perpetrators. The request was quickly dismissed by Moreno-Ocampo.
Muite says the trip was a clear indication that the police had not conducted any investigations or gathered evidence to prosecute cases.
"The police should stop making these statements, as they are insulting to the intelligence of the Kenyan [people]," Muite said.
On December 5, former justice minister and member of parliament Martha Karua told the Kenya National Dialogue and Reconciliation Conference, chaired by former United Nations Secretary General, Kofi Annan, that no such investigations were ongoing, despite reports to the contrary from the police.
"Almost four years down the line, victims of the 2007 post-election violence are still crying [out] for justice and police are yet to start investigations or prosecute anyone," Karua said.
The Kenyan parliament has twice tried and failed to set up a local tribunal, with most members voting to have the cases taken to the ICC.
Despite repeated calls from rights groups and the international community, Tobiko says that Kenya does not require a special tribunal to prosecute middle- and lower-level suspects.
Kenya has now adopted the legal principles of the ICC's founding treaty, the Rome Statue, into its domestic code, allowing it in theory to prosecute war crimes, crimes against humanity and genocide in its own courts..
"With the reforms going on in the judiciary, I am quite confident that some of the cases can be tried in the local courts without much problem, especially considering that Kenya has enacted the International Crimes Act," Tobiko said.
But Human Rights Watch says the fact that some of the cases "amount to crimes against humanity" makes it impossible for the local courts to deal with them.
"Some of the crimes were planned in one area and then committed in another area. The local courts do not have the capacity to deal with these complexities, despite the ongoing reforms in the judiciary," Ghoshal said.
Pointing to the international support that has been provided to other justice mechanisms implemented in Kenya, such as the Truth, Justice and Reconciliation Commission, Ghoshal said,
"The local tribunal should have international input for them to be credible. At the moment, Kenyan institutions don't have the capacity to prosecute these cases, and they need international help."
http://iwpr.net/report-news/kenyan-police-criticised-over-election-violence-cases
04 January, 2012
Kenya Politics in 2012
Welcome to 2012 in Kenya. This will be one of the most interesting and engaging years in Kenyan politics.
Once the ICC at the Hague puts Uhuru Kenyatta and William Ruto on trial (or dismisses their case) the political gear will be engaged and political temperatures will rise. Whichever way these cases go will determine who will be the next president of Kenya. It is Raila Odinga's last chance to be Mr. President and with him enjoying the benefits of incumbency, it is his presidency to lose. There are high chances that if Raila were to lose the elections, he will be beaten by Uhuru Kenyatta. A Raila versus Uhuru presidential campaign will most likely take us back to 2007.
The next big thing in 2012 is who will be the governors of the 47 counties. Other than the vast financial resources to be controlled by the governors, there is the "mini-president" and the "president-in-waiting" prestige associated with this newly created post. The main "war-zones" for the governorship will be rich and volatile counties like Nairobi, Nakuru, Mombasa, Meru, Nyeri, Kiambu, Kajiado and Kisumu. The governor position will also be fun to watch as level-headed corporate heads and green horns battle it out with the no-nsense and no-holds-barred characters like Sonko with bottomless easily-acquired campaign pockets.
The senator position may not elicit much emotions as many people have resigned to the fact that for its first term the senate will be an enclave of the rich octogenarians who need a little snooze from active politics.
Whichever the case may be, 2012 is bound to be another election year in Kenya when tribalism, corruption, misuse of government resources, voter bribery and violence reign.
Once the ICC at the Hague puts Uhuru Kenyatta and William Ruto on trial (or dismisses their case) the political gear will be engaged and political temperatures will rise. Whichever way these cases go will determine who will be the next president of Kenya. It is Raila Odinga's last chance to be Mr. President and with him enjoying the benefits of incumbency, it is his presidency to lose. There are high chances that if Raila were to lose the elections, he will be beaten by Uhuru Kenyatta. A Raila versus Uhuru presidential campaign will most likely take us back to 2007.
The next big thing in 2012 is who will be the governors of the 47 counties. Other than the vast financial resources to be controlled by the governors, there is the "mini-president" and the "president-in-waiting" prestige associated with this newly created post. The main "war-zones" for the governorship will be rich and volatile counties like Nairobi, Nakuru, Mombasa, Meru, Nyeri, Kiambu, Kajiado and Kisumu. The governor position will also be fun to watch as level-headed corporate heads and green horns battle it out with the no-nsense and no-holds-barred characters like Sonko with bottomless easily-acquired campaign pockets.
The senator position may not elicit much emotions as many people have resigned to the fact that for its first term the senate will be an enclave of the rich octogenarians who need a little snooze from active politics.
Whichever the case may be, 2012 is bound to be another election year in Kenya when tribalism, corruption, misuse of government resources, voter bribery and violence reign.