Kenya’s Post-Election Violence: Case Headed to the Hague

[Professor James Gathii, provides this timely insta-background on today’s decision by the the ICC prosecutor to open an investigation into the 2007 post-election violence in Kenya. Professor Gaathi teaches at Albany Law School, where he is the Associate Dean for Research and Scholarship and Governor George E. Pataki Professor of International Commercial Law. He publishes extensively on legal developments in sub-Saharan Africa.]

The International Criminal Court’s Chief Prosecutor Luis Moreno-Ocampo on November 5, 2009 informed Kenyan President Mwai Kibaki and Prime Minister Raila Odinga that he had decided to request the judges of the International Criminal Court to open an investigation into Kenya post election violence following the disputed December 2007 elections in that country. The ICC Prosecutor has been monitoring the situation in Kenya, which ratified the Rome Statute in March 2005, since February 2008 when his office issued a press release following the eruption of ethnically charged violence in late December 2007. See statement here.

Since then individuals, non-governmental organizations and foreign governments have urged the ICC Prosecutor to initiate an investigation following the deaths of over 1,000 people; the displacement of over 300,000 and numerous violations of human rights and the commission of crimes that fall within the jurisdiction of the international criminal court. Those violations and crimes are extensively detailed in two reports. One of the reports by the Kenya National Commission on Human Rights, that I helped to author, is available here.  It is titled “On the Brink of Precipice: A Human Rights Account of Kenya’s Post 2007 Election Violence.” Another important report that details the violations and crimes arose from a Post Election Violence Commission established under the Agreement on National Accord and Reconciliation negotiated by the Panel of Eminent African Personalities headed by Kofi Annan is the Waki Report, available here.

The Waki Report recommended that the President, Prime Minister, (whose office was established under the National Accord and Reconciliation Act following the Agreement negotiated by the Annan team), the Attorney General and Parliament would set up a Special Tribunal for Kenya to try persons bearing the greatest responsibility particularly for crimes against humanity arising from the violence following the December, 2007 elections. That Tribunal was to be set up within 60 days of the presentation of the Waki Report to the Panel of Eminent African Personalities. The Waki Report further recommended that if the Special Tribunal was not enacted or did not commence its proceedings within 60 days of the presentation of the Waki Report to the Panel of Eminent African Personalities, “a list containing the names of and relevant information on those suspected to bear the greatest responsibility…shall be forwarded to the Special Prosecutor of the International Criminal Court.” (Page 473 Para. 5 of the Waki Report.)  When that period expired and Parliament was unable to pass the Special Tribunal Statute, an envelope with the aforesaid information was forwarded to the ICC Prosecutor in July of 2009 by the Panel of Eminent African Personalities. See here.

The coalition government of President Mwai Kibaki and Prime Minister Raila Odinga has been unable to convince Parliament to pass the Special Tribunal Statute. When the government brought the Statute to Parliament, it was rejected. Raila Odinga’s party, the ODM, and Mwai Kibaki’s Party, the PNU, have agreed on little since they were bandied together by the Panel of Eminent African Personalities in early 2008. Parliament has however passed a Truth, Justice and Reconciliation Act (link here) that many Parliamentarians argued was an alternative to the possibly divisive Special Tribunal for Kenya bill. Divisive because it is believed some leading members of the cabinet in both President Kibaki’s party and Raila Odinga’s party are named in the envelope presented to the ICC Prosecutor in July 2009.

In light of the failure to set up a Special Tribunal for Kenya to try suspects involved in post election violence and the agreement Kenya entered into with the ICC Prosecutor in July 2009 (link here) affirming the government’s commitment to refer the situation to the ICC under Article 14 of the Rome Statute, the ICC Prosecutor met with President Mwai Kibaki and Prime Minister Raila Odinga on November 5, 2009 in Nairobi. In a statement released after the meeting, Kibaki and Raila reiterated their commitment to establish a local judicial mechanism to deal with the perpetrators of post election violence and to cooperate with the ICC “within the framework of the Rome Statute and…[Kenya’s] International Crimes Act.”

Thus, Kenya avoided having to refer the investigation and possible prosecution of post election violence suspects to the ICC under Article 14 of the Rome Statute. It seems neither Kibaki nor Raila wanted to take the political heat from their respective inner circles of having surrendered the fate of some of their most senior cabinet members to the ICC. Thus, the ICC will serve for Kenya, the role of conducting perhaps the most definitive investigation and possibly prosecutions following before the ICC of its post election violence offenders.

Kenya’s judicial and criminal justice systems have repeatedly come under heavy criticism and censure for their failure to address impunity. Most recently such criticism came from the UN Special Rapporteur on Extra-Judicial Killings, Prof. Philip Alston (link here).  A Special Tribunal would likely be inhibited from operating with as much independence and assistance from the government given that the domestic criminal justice system has so far made little to no progress under existing law to investigate and prosecute those who share the largest blame in Kenya’s post election violence. Of course the failure to establish a Special Tribunal speaks even louder of the prospect of impunity. Thus, the investigation by the ICC Prosecutor if allowed to proceed may present one of the best opportunities for holding those responsible for crimes that fall within the ICC Statute’s jurisdiction accountable.

Ocampo’s interest in initiating an investigation puts Kenya in the not so illustrious company of the Democratic Republic of Congo, the Central African Republic, Uganda and Sudan. While Ocampo’s announcement of his intention to initiate proceedings requesting for permission to investigate post election violence in Kenya is not as momentous as the issuance of an arrest warrant against the Sudanese President by the Prosecutor earlier this year, it is nevertheless a significant milestone in so far as the Prosecutor may in this one instance provide a neutral investigatory function to a country that but for its inability to muster political will and trust among its ruling elite, be able to undertake those investigations and prosecutions.