On the 5th of November 2009, the International Criminal Court (ICC) Prosecutor notified the President of the Court of his intention to submit a request for the authorization to start an investigation into the situation in Kenya pursuant to Article 15(3) of the Rome Statute about the 2007-2008 post election violence in Kenya in which around 1,300 people were allegedly killed.
In December 2010, the ICC Prosecutor named six Kenyans considered to bear the greatest responsibility for post-election violence in Kenya in 2007-2008. Uhuru Kenyatta, the erstwhile President of the Republic of Kenya elected in March 2013 is amongst the six suspects. In the years 2007-2008, Uhuru was the Deputy Prime Minister. Based on a thorough review of the evidence individually and collectively at the ICC, substantial grounds exist to show that between the 24th and 28th of January 2008, there was an attack against the civilian residents of Nakwa and Naivasha perceived as supporters of the Orange Democratic Movement (ODM), in particular, those belonging to the Luo, Luhya, and Kalenjin ethnic groups. The attack resulted in a large number of killings, displacement of thousands of people, rape, severe physical injuries, and mental suffering. Thus, the evidence established sufficient grounds to believe that the crimes of murder, deportation or forcible transfer, other inhumane acts, and persecution were committed.
The contribution of Uhuru Kenyatta was allegedly essential. More specifically ,Mr Kenyatta’s contribution allegedly consisted in the provision of institutional support , on behalf of the Party of National Unity (PNU) Coalition , to secure(i)the agreement with the Mungiki for the purpose of the commission of the crimes, and (ii), the execution on the grounds of the common plan by the Mungiki in Nakwa and Naivasha. That having gained control over the Mungiki, he directed them to commit the crimes.
In ICC-01/09-02/11, reference The Prosecutor vs Uhuru Muigai Kenyatta, Francis Muthaura, and Mohammed Hussein Ali, Case No 2, there are 10 counts on the charge sheet. The ICC allege that Mr Kenyatta is criminally responsible as an indirect co-perpetrator pursuant to Article 25(3)(a) of the Rome Statute for the crimes against humanity of: murder ,deportation or forcible transfer, rape, persecution, and other inhumane acts.
The ICC Pre-Trial Chamber No 2 confirmed the decision of the charges on the 23/01/2012, based on summonses to appear issued by the ICC on the 08/03/2011 against the suspects. Worthy of note is that the other three suspects (supra) in case No 1 are William Ruto, Henry Kosgey, and Joshua Sang.
They are also accused of having excited the public or taken part to commit the crimes against humanity in the violence which engulfed the Republic of Kenya after the announcement on 30, December 2007, of the results of the Presidential elections.
So far, 249 applications for participation as witnesses/victims has been received with 2,864 pages of evidence. 233 victims have been admitted to participate as witnesses. At a status conference on 5 February, lawyers for President Kenyatta continued to pressure the ICC to drop its case, which was supposed to start on 5 February but was postponed for a fourth time. Prosecutors said some witnessed had withdrawn and requested more time to gather further evidence. However, ICC prosecutor Fatou Bensouda is deciding whether the case against Kenyatta should proceed.
Africa and the ICC
Since its inception in July 2002, the world’s first and only permanent International Criminal Court (ICC) has not been without difficulties, controversies or criticisms. Yet, seeking to investigate crimes that shock the conscience of humankind was never going to be an easy task.
One such criticism is from Africa—that the Court it would appear was created to persecute, ridicule, and jail African Statesmen, and other high profile personalities from Africa. To buttress the point, it is on record that all the situations and cases under investigation or prosecution by the ICC are in Africa. The ICC has investigated eight situations involving the DRC, Uganda, Central African Republic (CAR), Darfur/Sudan, Kenya, Libya, Cote d’Ivoire, and Mali since its inception. The ICC has yet to open an investigation into crimes allegedly committed in a territory or by nationals of States that are wealthy.
Concerning the Kenyan imbroglio, efforts have been made to forestall or curtail the ICC process, one by MPs in Kenya who spearheaded a campaign aimed at pushing the country to withdraw from the Rome Statute (RS). The second strategy sought the support of the African Union (AU) for a one year deferral of the Kenyan cases by the UN Security Council under Article 16 of the Rome Statute.
However, African Heads of States support for the ICC process has been marked by division, and mistrust. Malawi and South Africa are on record to have openly told the Sudanese leader that he will be arrested to comply with the ICC process if he ever finds himself within their various countries. On the contrary, while the ICC arrest warrant is still pending, the Sudanese leader has paid State visits to Nigeria, Chad and Kenya.
Worst still, in the year 2013, an extra –ordinary Summit of the AU took place in Addis Abeba on the issue. The AU issued a strong message to the ICC to review the situation of El Bashir, Kenyatta, and other African Statesmen, failing which they will withdraw from the ICC. In other words, that the ICC was created to ridicule African Heads of States. Yet, the Prosecutor of the ICC is Mrs Fatou Bensouda, from the African State of The Gambia. One strong critic of the ICC is the Chairman of the AU, Rwandan President, Paul Kagame. He has openly dismissed the Court , saying it was created to prosecute Africans and others from poor countries. ‘’Why not Iraq?, why not Myanmar?, why not Argentina? ,questions Kagame. There is obviously an African bias.
The impact of civil society organizations
International and national civil society organizations ( CSOs) in Africa have been very helpful and instrumental in mobilizing support for the ICC process. 31 African States have ratified the Rome Statute, and 24 have already or are in the process of implementing the Rome Statute into national law. According to Francis Dako, the ICC Coalition’s Africa Co-ordinator, ‘‘with the support and expertise of the Coalition, African NGOs are the driving force behind the campaign: they raise awareness on the ICC among various stakeholders, and advocate to States and relevant officials on the need to ratify the Rome Statute and adopt an implementation law’’. Whether the Court is bias or not, is a question open to debate. African States could have foreseen this before adhering to the Rome Statute. Any withdrawal now may only cause more chaos as African States are expected to live as a ‘comity of Nations’. It is a very huge challenge.
Mukete Tahle Itoe