Court to Address Deadly 2007-2008 Election Violence
September 9, 2013
For decades those who have turned Kenya’s elections into bloodbaths have gotten away with murder. This ICC trial tackles an impunity crisis in the country and offers a chance for justice denied to Kenyans by their own government.
Daniel Bekele, Africa director

(The Hague) – The International Criminal Court (ICC) trial of Kenya’s deputy president is an important stage in determining responsibility for post-election atrocities that brought the country to the brink of civil war, Human Rights Watch said today. Opening statements in the trial of Deputy President William Ruto before a three-judge panel are expected to start on September 10, 2013 in The Hague.

The 2007-2008 violence was sparked by alleged rigging of the presidential election. Ethnic-based killings and reprisals that often appeared to be meticulously organized, as well as police use of excessive force against protestors, killed at least 1,100 people, injured thousands more, and forced as many as 650,000 people from their homes.

“For decades those who have turned Kenya’s elections into bloodbaths have gotten away with murder,” said Daniel Bekele, Africa director at Human Rights Watch. “This ICC trial tackles an impunity crisis in the country and offers a chance for justice denied to Kenyans by their own government.”

Kenya’s elections in 1992 and 1997 also saw widespread violence. Those responsible for the violence in the 1990s were never held to account in trials in Kenya. In the nearly six years since the 2007-2008 violence, there have been only a handful of convictions in Kenya for serious crimes in election violence-related cases.

As the Ruto trial date neared, Kenya’s national assembly on September 5 called on the government to pull the country out of the court, which it joined in 2005. For Kenya to withdraw from the Rome Statute, the ICC treaty, Kenya’s government will need to notify the United Nations secretary-general in writing. A withdrawal takes a year to go into effect. Under the terms of the treaty, however, Kenya’s obligation to cooperate in any cases pending before the date of withdrawal would remain intact.

Kenya’s parliament also voted for withdrawal in December 2010, after the ICC prosecutor announced he would press charges, but Kenya’s then-president did not act on the motion.

“Every time the ICC process inches forward, the country’s political establishment scrambles furiously to block the way,” Bekele said. “A motion by parliament calling for Kenya to withdraw from the ICC can’t stop these cases or provide an excuse for Ruto not to attend the trial.”

Ruto, who was an opposition member of parliament during the post-election violence, and a co-defendant, the radio broadcaster Joshua arap Sang, face crimes against humanity charges of murder, deportation or forcible transfer of population, and persecution. Ruto is accused of organizing, and Sang of inciting and coordinating through his radio program, attacks against members of the Kikuyu, Kamba, and Kisii ethnic groups, who were perceived to be supporters of the then-ruling party.

The trial of Kenya’s president, Uhuru Kenyatta, in a related but separate case, is to start at the ICC in November. He faces crimes against humanity charges of murder, deportation or forcible transfer of population, rape, other inhumane acts, and persecution. He is accused of enlisting a criminal gang, the Mungiki, to carry out retaliatory attacks on thoseperceived to be opposition supporters.

In both cases, the defense is not required by the court’s procedures to set out its case in advance of trial.

The three defendants are not subject to arrest warrants because they have to date appeared at court on every occasion requested and have pledged to continue voluntarily appearing before the ICC.

Kenyatta and Ruto have painted the ICC as a tool of Western imperialism. But Kenya’s own national Commission of Inquiry into Post-Election Violence recommended that if Kenya’s authorities failed to establish a special tribunal, the matter should be referred to the ICC as a court of last resort. After legislative efforts to set up the tribunal went nowhere, the ICC prosecutor stepped in and began investigations in 2010.

“The ICC’s cases do not cover all of the crimes committed, and not all victims will hear their stories told in court,” Bekele said. “But these cases are the first real effort to look at responsibility for the organization and financing of the crimes.”

The burning of a church in rural Kiambaa, south of Eldoret in Kenya’s Rift Valley was among the most horrifying scenes of post-election bloodshed that Human Rights Watch investigated in 2008. A mob set fire to a church where terrified residents had sought refuge. Approximately 30 people were burned alive.

One man told Human Rights Watch: “I saw my nephew on fire. He said, ‘uncle, uncle!’ but then he fell on his face because the petrol-soaked mattress was on his back and the fire took him.”

The Kiambaa church burning is among five incidents in the Rift Valley cited in the ICC prosecutor’s case against Ruto and Sang. The ICC prosecutor had initially sought charges against a third suspect in this case, Henry Kiprono Kosgey, then also a senior opposition member of parliament. A pretrial chamber found insufficient evidence to send the case against him to trial, however.

In addition to the prosecution and defense teams, a lawyer representing the victims in the ICC’s case will also make an opening statement when the trial begins.

All ICC defendants are entitled to a presumption of innocence. Lawyers for Ruto have indicated that they will seek to show that prosecution witnesses colluded to fabricate evidence. It will be up to the judgesto weigh the evidence, and they should make every effort to vigorously safeguard fair trial rights, Human Rights Watch said.

Ruto and Kenyatta were elected in March on a joint ticket. While the recent elections were not accompanied by widespread violence, impunity for the 2007-2008 violence remained an underlying source of tension, in spite of pressure by authorities to “move on,” Human Rights Watch said.

The new government has sought to keep up an appearance of cooperation with the court as an ICC member country. But it has also sought the support of regional leaders and political bodies to end the ICC’s cases, undermining its stated commitment.

The ICC prosecutor has alleged that there has been “unprecedented” interference with witnesses for the case. The government has ignored threats or harassment of human rights defenders and journalists that seem to stem from their perceived association with the ICC cases. Social media campaigns have targeted groups that speak out for accountability for the 2007-2008 violence.

The Kenyan media have actively reported on the ICC, but given the high-profile nature of the defendants, objective information about the court cases has at times been drowned out, Human Rights Watch said. In this context, it becomes all the more important for the ICC to undertake robust public information activities to ensure that Kenyans are fully informed about proceedings in The Hague.

“Kenyatta and Ruto ran on campaign pledges to cooperate with the ICC, but this is hardly evident from the actions of their government,” Bekele said. “As the first trial starts, the Kenyan government should make a clear public statement that it will make every effort to protect the safety of all those who seek to assist the ICC or any other justice process.”