ICC charges Kenyan leaders for post-election violence

The International Criminal Court has sent a signal that there are consequences for political leaders who use violence to achieve political goals by confirming charges of crimes against humanity against four prominent Kenyans.

Whether this changes the political landscape, ends the culture of impunity, or prevents future violence in Kenya, is a matter for Kenyans themselves to decide.  

In its decision, announced from the Hague today, the ICC confirmed charges of crimes against humanity first laid in Dec. 2010 against four men for their alleged role in organizing mass violence following the 2007 presidential elections.

The charged are former Higher Education Minister William Ruto, former Finance Minister Uhuru Kenyatta, former civil service chief Francis Muthaura, and radio talk show host Joshua arap Sang. Charges were dropped against two others: former Kenyan police commissioner Hussein Ali and parliamentarian Henry Kosgey.

The four men are accused of organizing mass violence following the disputed presidential elections of Dec. 27, 2007, in which President Mwai Kibaki was declared the winner. Senior leaders of both main parties, the president’s Party of National Unity and the opposition Orange Democratic Movement, are accused of stirring up ethnic violence for political advantage and retribution. At least 1,200 people were killed and 600,000 displaced from their homes.

Human rights activists and observers hailed the decision.

“From the perspective of transparency, the court is seen to be acting in an open way, which is something that Kenyans are not familiar with,” says Comfort Ero, director of the Nairobi office of the International Crisis Group, which issued a report ahead of the ICC decision. “Given how volatile the Kenyan political environment can be, and given the history of questionable judicial processes in the past, I think for Kenyans to see these alleged perpetrators of violence to face justice in a process that is free of interference is a powerful thing.”

Today’s decision was watched closely by Kenyans, and police prepared for a potential violent reaction in towns where violence had occurred.

Two of the accused, Mr. Ruto and Mr. Kenyatta, have declared their intentions to run for president in the 2013 elections, and the newly written Kenyan constitution is ambiguous on whether those facing criminal charges can run for public office. But at a time when Kenyans appear to have turned against their own politicians – many of whom lobbied hard against the new constitution during a referendum – and seem to put more trust in the International Criminal Court process than their own courts, today’s ICC decision presents Kenyan voters with a chance to change the political culture of their country.

“The constitution does not forbid a person from running for office who is faced with criminal charges,” says Ms. Ero.

But the constitution does say that a president who faces criminal charges is vulnerable to impeachment, and in that spirit, Ruto and Kenyatta could possibly be tossed out of office with a two-thirds vote of parliament.

“The question is more a political and moral one than it is a legal one,” she adds. “How will Kenyans react to this decision? How will they feel about a candidate, knowing that he faces such charges? Is this the sort of person they want to have in office?”

In a report issued today, Human Rights Watch warns that politicians in Africa continue resisting cooperation with the ICC, even those countries such as Kenya which have incorporated ICC provisions into their own constitutions. The ICC was created as a court of last resort, when national courts are unable or unwilling to take up human rights cases. The Kenyan parliament failed on two occasions to create a local tribunal to handle the post-election violence cases, which then prompted the ICC to take them up instead.

“This past year demonstrated the desire of so many Africans to choose their own leaders peacefully and fairly,” said Daniel Bekele, Africa director at Human Rights Watch in a statement. “Sadly, the votes were often marred by government intimidation, army and police abuses, and conflict incited by politicians. Unless these grave problems are remedied, Africans are likely to see more of the same in future elections.”

Now the ICC chamber must set up a tribunal, or perhaps two, to handle the Kenyan cases, a process that could take weeks or months. It is uncertain whether a verdict of innocence or guilt will be attained before Kenyan elections, planned for March 2013.

The ICC, which was set up in July 2002, has taken on investigations in six other countries: charges of massacres and use of child soldiers in Democratic Republic of Congo; crimes against humanity by Lord's Resistance Army rebel commanders in Uganda; crimes against humanity by a Congolese warlord in the Central African Republic; genocide against the Sudanese president over fighting in Darfur region; crimes against humanity by Libyan leader Muammar Qaddafi; and crimes against humanity in Cote D'I'voire after 2010 elections. 

In the case against Ruto and Mr. Sang in Kenya, the court found “the Prosecutor has established substantial grounds to believe that the crimes against humanity of murder, deportation or forcible transfer and persecution were committed. These crimes resulted in the death of hundreds, and the displacement of thousands of civilians from Turbo town, the greater Eldoret area, Kapsabet town and Nandi Hills."

“The Chamber also found that these crimes were committed as part of an attack directed against particular groups, namely, Kikuyu, Kamba and Kisii, due to their perceived political affiliation to the Party of National Unity.”

In the case against Mr. Muthaura and Kenyatta, the court found “substantial grounds to believe that between 24 and 28 January 2008 there was an attack against the civilian residents of Nakuru and Naivasha perceived as supporters of the Orange Democratic Movement, in particular those belonging to the Luo, Luhya and Kalenjin ethnic groups.”

The court issued the two announcements together, in order to minimize the possibility of violence in one ethnic community or another. The court also announced in its decision today that “the presumption of innocence remains fully intact” and that their decisions today “do not affect the liberty of the accused, which remains undisturbed.”

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