ICC trials for Kenya's new leaders may shift partly back home

Judges trying a high-profile case related to Kenya's 2007 election violence suggested some proceedings could be moved from The Hague to East Africa, causing alarm among victims.

Defense lawyers for Kenya's Deputy President William Ruto and his co-accused, radio presenter Joshua Arap Sang, argued it was “desirable in the interests of justice” for their clients’ International Criminal Court (ICC) trials be held in Kenya or Tanzania.

The two men are accused of three counts each of murder, persecution, and forcing people from their homes. The charges are linked to clashes that erupted in Kenya after the country’s disputed 2007 presidential election.

The ICC has faced criticism here for seeming to indict mostly Africans and trying them far from where they are alleged to have carried out their crimes. The idea of moving one of the world tribunal's most high profile trials back to Africa may have been motivated in part by this.

However, many of those directly impacted by the alleged crimes say the country is not ready to take on such a delicate task, particularly as the standing president, Uhuru Kenyatta, faces similar charges in a second ICC case due to start next month.

Both Mr. Ruto and Mr. Sang deny the charges and their trial is due to start in September in The Hague.

'Bringing justice closer' to home

On June 3, a three-judge panel at the ICC surprised many with an announcement that it “may be desirable” to hold some hearings in Kenya, ideally, or in neighboring Tanzania.

“The Chamber notes the proposed benefits of moving the trial to Kenya as a means of bringing justice closer to victims and the affected communities,” the judges said in their ruling.

“The Chamber also underscores the significance of holding the trial close to the locality where the alleged crimes were committed.”

No decision has yet been made to shift the proceedings, and it is likely that if a change of venue were agreed upon, only opening statements and some witness testimony would be heard away from The Hague.

However, 82 percent of the 50 election violence victims represented in the case told the ICC’s judges they oppose the move, “for reasons of security, fears of victims’ and witnesses’ intimidation and to avoid delays,” according to ICC documents. 

“They are very right, this thing must be heard away from Kenya,” says Evelyn Achieng, who was caught up in the 2007 violence in Kisumu, a city in western Kenya.

“These men who stand accused are now our President and Deputy President. They are ever more powerful, and if I was a witness to that trial, I would not be happy to go to a court in Nairobi and give evidence," Ms. Achieng says.

“Only in an international court where these men do not wield influence would I feel safe.”

Chege Njoroge, who fled his former home with his family on New Year’s Day 2008 and is still living on borrowed land, supported Mr. Kenyatta and Mr. Ruto in Kenya’s election this year. Yet, Mr. Njoroge also says the trials should be held abroad. 

“People here have no trust that any legal case in Kenya can be free and fair,” he says. “Witnesses are intimidated, security is lax, judges [for local trials] can be bought.

“Our leaders should stick to The Hague and clear their names there, in the highest court in the world, so no-one can ever say their acquittals are tainted.”

International interest

Holding parts of the trials in Kenya would “likely increase the interest of international media and local and regional coverage,” the judges said as part of their ruling.

But Mwalimu Mati, head of an independent Kenyan governance watchdog, says this should not be a key concern.

“Technology nowadays is such that most of us are used to watching the trial’s proceedings live on television, or online, and it doesn’t matter therefore whether it’s in The Hague or down the road in Nairobi,” Mr. Mati says.

“As to whether hearings in Kenya, or Tanzania, would be better, this is all such unprecedented territory that it’s very hard to say.”

Kenya’s judiciary has been extensively reformed since 2008, he adds, meaning that many of the country’s citizens now have greater faith in its legal proceedings.

Should the trials move to Kenya, or unused courtrooms at the International Criminal Tribunal for Rwanda in Tanzania, the judges, clerks, interpreters, and legal teams would all be transferred from the ICC in The Hague.