June 9, 2011
Civil society and international partners should be holding the government to its new promises for investigations. It is time for Kenya’s leaders to stop playing games and get serious about delivering justice.
Elizabeth Evenson and Neela Ghoshal

On May 30, International Criminal Court (ICC) judges turned down the latest effort by some in the Kenyan government to thwart the court's cases against six leading political and government officials. The "Ocampo Six" are accused of involvement on both sides of Kenya's 2007-2008 post-election violence.

As a court of last resort, the ICC must defer to genuine national prosecutions. The Kenyan government claimed that it had already begun investigations into the post-election violence and was ready to step them up, including the cases against the Ocampo Six. But the judges rejected Kenya's "admissibility challenge," finding no evidence that the government was actually investigating them.  A promise to investigate, the judges held, is not enough to stop existing ICC cases.

The pre-trial chamber made the right call.  

In the last three months, we have been interviewing police, judicial officials, lawyers and victims and reviewing court files across Kenya to determine what steps have been taken to prosecute those responsible for crimes during the post-election violence. We found that more cases related to serious crimes have gone forward than is often acknowledged, but they rarely targeted senior leaders or police use of excessive force. The dozens of convictions for petty crimes are outnumbered by withdrawals or acquittals for petty and serious crimes alike.

To support its challenge, the Kenyan government cited an April 2011 letter from its attorney general to the police commissioner urging him to expedite investigations, including for the Ocampo Six. We found that files on post-election violence cases have been collected from police stations in recent months by investigators sent from police headquarters. But no prosecutors we interviewed have received recent orders to initiate prosecutions, and none of the police we interviewed have been directed to carry out new or renewed investigations.

 A report prepared for the attorney general catalogued what are claimed to be scores of completed or pending post-election violence cases, but a number of cases it listed-particularly for sexual and gender-based violence-are not related to the post-election violence. 

Against this backdrop, the pre-trial chamber was right to insist on concrete evidence that the government was actively investigating the cases against the Ocampo Six. The government may appeal, and the ICC's appeals chamber will get the last word. If the decision is affirmed, a long process still lies ahead and the Ocampo Six are entitled to a vigorous defense. The next step would be hearings scheduled for September to determine whether the charges should be confirmed and the cases sent to trial.

But closing the book on this admissibility challenge should not mean closing down efforts to hold others to account in Kenya. Just the opposite. National proceedings against others alleged to have committed crimes during the post-election violence are essential for full accountability.

There is plenty of work to go around. The ICC prosecutor initially identified 20 possible accused, while the Kenya National Commission on Human Rights list of alleged perpetrators runs to 200 plus.

Complementarity-the principle that national courts should be the primary vehicle for prosecuting suspects-can still work in Kenya, with national prosecutions widening the circle of accountability beyond the Ocampo Six.

This won't be easy.

Many factors have prevented effective prosecution of the post-election violence. There have been poor police investigations. Police prosecutors have limited legal training and are reluctant to prosecute their colleagues. Kenya has no functioning witness protection system. And political figures have tried to get suspects off the hook. Three years on, investigations will be even more difficult.

Reforms are under way to address some problems, and the Kenyan government made much of these efforts in support of its admissibility challenge. But reforms take time, and some are already falling behind schedules mandated in the new constitution. Kenya's new Witness Protection Agency, established a year ago, is still without adequate funding.

Broad judicial reform is essential, but in the meantime, Kenya will need a special tribunal if any serious progress is to be made. A special tribunal for the post-election violence-insulated from political interference and equipped with the necessary expertise through a mix of national and international judges, prosecutors, investigators, and witness protection experts, while rooted in Kenyan law and procedure-would bridge existing gaps. It would also contribute to the long-term strengthening of the judicial system. 

The government has repeatedly broken its promises to hold those responsible for the post-election violence accountable. Rather than get down to the real business of reforms, some government officials spent the first months of this year lobbying-unsuccessfully-for the United Nations Security Council to suspend the ICC's work. Yet public support in Kenya for the ICC remains above 70 percent, according to a recent poll.

Civil society and international partners should be holding the government to its new promises for investigations. It is time for Kenya's leaders to stop playing games and get serious about delivering justice.