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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.