January 23, 2012


The ICC Ruling and post-election violence: in this article, we consider the reactions to and legacy of the ICC ruling.

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Certain charges ‘confirmed’ in ICC ruling on Kenya’s post-election violence

Certain charges ‘confirmed’ in ICC ruling on Kenya’s post-election violence

As you will almost certainly know by now, the International Criminal Court (ICC) in The Hague have confirmed that four of the ‘Ocampo Six’ are to be tried as “indirect co-perpetrators”, or of having “contributed” to crimes committed during Kenya’s post-election violence in 2007-08.

The ICC’s Presiding Judge, Justice Ekaterina Trendafilova, first outlined the “impact” the court’s decisions would have on those against whom charges have been confirmed – Uhuru Kenyatta, William Ruto, Francis Muthaura and Joshua Arap Sang. They will now be “tried before a different Chamber [of the ICC] for the charges confirmed”.

For those for whom charges have not been confirmed – Henry Kosgey and Mohammed Hussein Ali – “the Chamber wishes to clarify that they are no longer suspects before the Court”, said Judge Trendafilova but continued, “However, the Chamber recalls article 61(8) of the Rome Statute, according to which the Prosecutor may present additional evidence requesting confirmation of charges against Mr Kosgey and Mr Ali”.


Of the four defendants against whom charges will be preferred by the ICC Judge Trendafilova said that, “the Chamber wishes to be unequivocal and state that Mr Ruto, Mr Sang, Mr Muthaura and Mr Kenyatta are merely accused by this Court”, and continued, “The Chamber would like to emphasise, for the purpose of clarity, that the presumption of innocence remains fully intact”. They will therefore remain at liberty “subject to their non-engagement in incitement of violence or hate speech”.

Fair enough says the Forum but this is Kenya, watch from now on as every utterance by the ICC four is interpreted as “incitement to violence” or the nearly indefinable “hate speech” by their political opponents, and if Judge Trendafilova thinks that sections of Kenya’s media, some of its commentators and not a few individuals from ‘civil society’ are going to refrain from, in effect, stating that the four are guilty before and during the trial, she’s got another think coming, as they say.


It was of great interest to the Kenya Forum that Justice Hans-Peter Kaul “appended a dissenting opinion in both cases”. Kaul argued that the ICC was not competent to try the case because the crimes committed, in his view, “were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute”.

The Kenya Forum thinks Judge Kaul has a point. The crimes committed were horrendous, the death toll appalling, the displacement of hundreds of thousands of people a vast human tragedy but they were crimes committed by individual humans, many of them and for many different reasons but whether they can be classified as “crimes against humanity” is a very debatable point.

Either way, it should be noted that only two of the three ICC judges have ruled against the defendants, and for two of those, it was found, there was not sufficient evidence to charge them with wrongdoing.


One Nairobi-based lawyer who spoke to the Kenya Forum after the ICC’s announcement reacted positively to the ruling. “I’m very pleased overall”, she said, “the least culpable of the defendants have not been indicted and they are also the ones who have acted most honourably throughout the ICC’s hearings”.

She was less positive about what it would mean in the near future for Kenyan politics. “Quite what’s going to happen now that part of Kibaki’s ‘kitchen cabinet’ are going to be indicted, is a worry”, she said. “I think there’s going to be a huge campaign emphasising that they are innocent until proved guilty and the Public Office Act will be cited to support the argument that they should remain in office”.

The lawyer finished her comments on an interesting point: “You will also see a campaign to delay the next election for as long as possible so that Kenyatta can run. The tide seems to have turned against Raila Odinga but there’s no serious candidate to stand against him in the absence of Uhuru Kenyatta”.

Other comments made to the Forum included disdain for the ICC process as a “circus” and “amateurish” to surprise that Mathaura was to be charged on the basis that he was, if guilty at all, a “hired hand who did other people’s bidding rather than pulled the strings”.


What everyone agreed was that Kenyatta and Ruto would stand in the next election despite the ICC’s decision: with this the Forum agrees. The two have stated that they would run in the election whatever the ICC said, and given the “presumption of innocence”, whatever your feelings about the individuals concerned, or political allegiance, they have every right to do so. Those citing Chapter 6 of the new constitution, arguing that it means they cannot stand in the election, are wrong and obviously haven’t read it.

However, that does leave the intriguing prospect, as a media consultant said to the Forum, of “the crazy case of a guy elected President of Kenya having to face the ICC”.

Certainly the ICC’s ruling will be used as a stick in Kenyan politics (no surprise there!) but quite how may not always be apparent. Don’t be surprised to see William Ruto implicate Raila Odinga if the going gets tough, and don’t be surprised if there isn’t an attempt to cut off Kenyatta’s funding of an election, whether it be his own or someone elses.

Let’s leave the last sobering comment at this stage to a Nairobi businessman. Asked by the Kenya Forum what he thought of the ICC’s ruling, he responded, “Bottom line is, it’s not going to change the price of bread. The common waananchi have far too much to worry about at the moment to care about four guys who may, or may not, have committed crimes after the last election”.


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