KENYA:ICC Indictments and how Kenya will react

Friday, December 17, 2010

Indictments will push Kibaki government to set up local tribunal and drag-out international trial process…Charged ministers will keep their posts for now as coalition government remains intact…

International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo on 15 December submitted an application requesting the Pre-Trial Chamber of the ICC to issue summons for six prominent Kenyans government officials to appear and account for crimes of international concern committed during the post-election violence
(PEV) in Kenya following the December 2007 elections.  The six Kenyans charged include two current cabinet ministers, the head of the civil service, a suspended cabinet minister, a former police commissioner and a prominent journalist. The six are charged with various crimes which allegedly led to the deaths of about 1,300 people and the internal displacement of about 350,000 were after deadly clashes following Kenya’s disputed 2007 vote.

As Kenya awaits the Pre-Trial Chamber’s decision, questions continue to swirl  around the political impact of the ICC process in Kenya.  The procedural complexity of the process and substantive hurdles to securing a conviction have minimized the likelihood of renewed conflicts amongst the general population and organized protests by political groups.

The ICC process is a result of the Kenyan leadership’s failure to institute a national process to address the crimes committed during the PEV.  A bill by a Kenyan Member of Parliament to create a local tribunal to try the perpetrators of the PEV was shelved in November 2009 after members of Parliament left the chamber practically empty during debate on the bill.  

Some of the named suspects, specifically Cabinet Minister Uhuru Kenyatta and suspended Cabinet Minister William Ruto, have been aware of moves to link them to the PEV and have taken steps to clear their names.  Both were named as key perpetrators of the violence in the report of the Kenya National Commission on Human Rights on the PEV,On the Brink of the Precipice: a Human Rights Account of Kenya’s Post-2007 Election Violence, and have made several unsuccessful moves to have their names expunged.  In particular in early November 2010, Ruto flew to The Hague purportedly to “set the record straight”.  Because of the report, it
is, hardly surprising that Ruto and Kenyatta are on the Prosecutor’s list of  suspects. The general expectation that both Ruto and Kenyatta were to be charged has minimized the chances of spontaneous protests or clashes by their supporters in the vast Rift Valley (Ruto’s political base) and Central Province (Kenyatta’s
support base).

The Prosecutor’s actions have also affected both dominant political groups in Kenya, the Party of National Unity (PNU) and the Orange Democratic Movement (ODM).   Previously, there were claims that the ICC process was being used to boost the presidential aspirations of current Prime Minister, Raila Odinga. However, one of the cabinet Ministers, Henry Kosgey, is a key Odinga ally in the Rift Valley.   Uhuru Kenyatta and Francis Muthaura are also key allies of Kenyan President Mwai Kibaki, which should dispel any claims that the ICC process was a tool of any wing of the ruling coalition against perceived or actual enemies.   As a result high levels of public expectations that several cabinet ministers may be charged, the Prosecutor’s announcement has not polarized the general population and has minimized chances of spontaneous protests.

Ocampo’s announcement has also not elicited any significant organized protests so far because both factions within the government have had high profile members charged. Under article 19 of the Rome Statute, an accused person or a State may challenge the jurisdiction of the ICC or the admissibility of a case before the ICC.  A State may challenge the ICC process on the grounds that it is investigating or prosecuting the case as the ICC’s jurisdiction is complementary to the national criminal jurisdiction.  President Kibaki’s statement that the Government is fully committed to the establishment of a local tribunal may present a means of challenging the ICC process by instituting local proceedings.   Ruto has also claimed in the local Kenyan media that the ICC case
is built on faulty evidence given by witnesses lacking credibility.  This may present another opportunity to challenge the ICC process and slow it down.   These labyrinthine procedures have nuanced the ICC process in the court of Kenyan public opinion.

Besides the procedural complexities of the ICC process, Kenyan politicians are also aware of the substantive hurdles to securing a criminal conviction before the ICC.  Ruto has claimed that the ICC process would take “90 years” to complete.   In response to the Prosecutor’s indictment, President Kibaki also stated: "… that the people who have been mentioned have not yet been fully investigated as the pre-trial process in The Hague has only but began. They therefore cannot be judged as guilty until the charges are confirmed by the court."  These statements may point to a general political strategy of tying any political responsibility to the criminal conviction of the named suspects.

Under articles 1 and 5 of the Rome Statute, the suspects would be charged with the most serious crimes of international concern, which in this case would be crimes against humanity.  Under the Rome Statute and generally accepted principles of international law, the suspects would be presumed innocent until proven guilty and the Court would have to be convinced of their guilt beyond a reasonable doubt.  As an example, for a crime against humanity of deportation
or forcible transfer of population, the Prosecutor would have to present evidence showing that (1) the suspect deported or forcibly transferred one or more persons to another location; (2) such person or persons were lawfully present in the area from which they were so deported or transferred; (3) the suspect was aware of the factual circumstances that established the lawfulness of such presence; (4) the conduct was committed as part of a widespread or
systematic attack directed against a civilian population; and (5) the suspect knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.  Of these elements, the most troublesome is the intent or knowledge requirement which must be proved beyond a reasonable doubt.  To prove these elements, the Prosecutor would be relying on the testimony of witnesses whose credibility is already being challenged by some of the suspects.   The ICC has yet to secure a conviction under these provisions of the Rome Statute since it entered into force on 1 July 2002.

Due to the difficulties in securing convictions, the ICC may only destroy the political careers of the named suspects, particularly Mr. Ruto and Mr. Kenyatta, who have both expressed ambitions to vie for the presidency in 2012.   Both the Prosecutor and the African Union Panel of Eminent African Personalities have  gone to great lengths to minimize the negative impact of the ICC process on local political dynamics in Kenya.   Instead, they have turned the ICC process into an individual affair where prominent Kenyan politicians and civil servants will have to individually fight criminal charges as they continue to discharge their duties to the Kenyan people.  The ICC process may continue well past the expected elections of 2012 and only time will tell what its true impact will be.

For now both factions within the coalition government will bind together and the charged top officials will remain at post.
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