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As ICC dismisses Kenya case, victims of 2008 violence feel left behind

The International Criminal Court said it lacked sufficient evidence to rule on charges against Deputy President William Ruto. 

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    The leader of Majority Aden Duale (R) congratulates Kenyan Deputy President William Ruto in Nairobi after judges at the International Criminal Court on Tuesday threw out post-election violence charges against Ruto.
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It didn't take long after the International Criminal Court dismissed charges against Kenya's deputy president for thousands of supporters to pour into the streets to cheer the final blow to a case that Kenya's president called "a nightmare for my nation."

The judges at The Hague declared a mistrial, saying the prosecutor had failed to provide sufficient evidence to convict Mr. Ruto and a second defendant of crimes against humanity over violence that killed at least 1,100 people and left 650,000 homeless after disputed elections in 2007.

The outcome is a welcome relief for the ruling Jubilee Coalition, which could see its prospects boosted ahead of elections next year. But the question remains of how to seek justice for the “forgotten” victims, some are still living in displaced people’s camps in the Rift Valley, where the violence started, and elsewhere in western Kenya.

The dismissal has garnered praise in Kenya and elsewhere on the continent, where the court has often been seen as targeting the Africa's presidents, politicians, and generals. But it is also seen as a big blow to the credibility of the ICC, which said that it was hampered in the case by political interference and threats against prosecution witnesses. 

The charges against Ruto and Joshua arap Sang were brought in 2012, in a case parallel to that of President Uhuru Kenyatta. Mr. Kenyatta’s case was terminated in 2015.

The cases were based on attacks and retaliations in the violence, which was sparked after former President Mwai Kibaki was declared the winner of the vote and opposition leader Raila Odinga rejected the results as rigged. The violence was the worst in the former British colony’s history. 

But for the victims, as well as other Kenyans who had welcomed the effort to bring justice, the results are dispiriting.

Hundreds of women and girls were raped in the 2007-08 violence, and many continue to struggle with physical and psychological health challenges, poverty, and exclusion, according to Human Rights Watch. Some were infected with HIV and other sexually transmitted diseases, but have never accessed proper treatment.

“Many of them are disappointed since they had been expected a favorable outcome," says Wilfred Nderitu, the victims’ lawyer. "They had hoped the case would proceed to a full hearing. Now, the next step is to fight their compensation.”  

In March 2015, Kenyatta announced a $9.8 million to provide restorative justice for the victims. “We are looking into the assistance mandate to see how they can be compensated,” says Mr. Nderitu.

But Wainaina Ndung’u, the director of the International Center for Policy and Conflict paints a gloomier picture, saying full restitution is unlikely.

“I think the victims are in triple jeopardy. They lost relatives and property. The state has not sided with them and ICC has failed bring justice to them,” says Mr. Ndung’u.

Kenya’s office of the Director of Public Prosecutions should immediately jump-start cases related to the violence in local courts, which he says.

Kenyatta has announced a thanksgiving prayer and a rally next week in Nakuru town, but the planned celebrations have also attracted criticism.

“They tell of general feeling among the politicians that they have won. This is more like a win against the people and the victims. For now, no one cares about the victims,” argues Morris Odhiambo, president of the Civil Society Congress, an umbrella organization of civil society groups.

He says he suspects that victims may not see justice soon since Kenya has long history of ethnic violence and displacement.

“Many are still searching for justice, so the current state of post-election violence victims does not come as a surprise,” says Mr. Odhiambo.

Elizabeth Evenson, senior international justice counsel at Human Rights Watch, says the outcome is a blow to those who had wanted greater accountability.

“But those hopes are likely to disintegrate now given the lack of action in Kenya and the seeming obstruction of the process in The Hague,” she said in a statement.

Meanwhile, for some analysts the dismissal is not moral triumph for the two, since they were not discharged because of their innocence, but troubling episodes on witness interference, intimidation, bribery and unexplained killings.

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