Dear Foreign Minister,

Further to our letter of April 15 this year we are writing again to urge you to adopt conclusions at the upcoming meeting of the General Affairs and External Relations Council (GAERC) expressing the urgent need for accountability and reform in Kenya.

On June 3, EU Heads of Mission in Nairobi issued a clear public statement supporting the findings of UN Special Rapporteur on Extrajudicial Killings, Philip Alston, on police abuses. The EU expressed serious concern at the lack of accountability in the security forces and at the delay in setting up the Special Tribunal on post-election violence. The statement also noted that, "We are deeply concerned by the dismissive nature of the official response so far to the grave reports of abuses made by the Special Rapporteur, Waki Commission, the Kenyan National Commission on Human Rights and other human rights groups."

The Kenya government announced the formation of a Police Reform Task Force in May, and largely accepted Philip Alston's findings in its official response at the UN Human Rights Council. While this development is to be welcomed, this should not be allowed to provide the Kenyan government with another excuse for delaying hard decisions. Abuses of citizens by the police are a daily occurrence in Kenya. The necessary reforms of the police force were laid out in detail in the Waki Commission report, in Philip Alston's report, and are well known among the police itself. In any case, measures to ensure accountability could be implemented immediately and easily. The only impediment to serious investigation and prosecution of police abuses, military abuses and crimes committed in the context of the post-election violence, is political will-at the top-to investigate, and if necessary, prosecute, political allies.

The same reluctance to tackle powerful political allies is responsible for the limited amount of time that is now left for Kenya to pursue justice for the victims of the post-election violence. At the end of August, the deadline for establishing a Special Tribunal to investigate and prosecute those most responsible for the post-election violence of 2008 will expire and, should the tribunal not be set up, Kofi Annan will hand the existing evidence to the International Criminal Court (ICC). Kenya is a state party to the ICC.

At a July 3 meeting with the Chief Prosecutor of the International Criminal Court, a Kenyan government delegation agreed to refer jurisdiction to the ICC in accordance with article 14 of the Rome Statute, in case the Special Tribunal would not be established within the coming months. Even if that occurs, the ICC will only be able to investigate and prosecute a small number of those considered most responsible for crimes against humanity committed with impunity in the context of the post-election violence. Kenya will still need to ensure accountability on a much wider basis. Moreover, the repudiation of the most important domestic justice mechanism by the Kenyan parliament would represent the jettisoning of a major part of the National Accord that led to the coalition government in the first place. The Accord, brokered by Kofi Annan and the panel of eminent African personalities, was founded on the twin principles of accountability and reform. The Accord rightly noted the central role that impunity has played in fostering violence and corruption in Kenya over decades.

Kenya remains in a very difficult situation. The coalition government is in jeopardy. Kenya's leaders have so far shown a lack of leadership in addressing the conduct of its security forces and in seeking accountability for last year's violence. Without such leadership, public confidence in the police and in politicians will continue to plummet with potentially serious consequences such as a rise in mob justice and an increased risk of a return to violence.

If, as seems likely, the Kenyan parliament is again pressed by powerful interests to reject serious efforts to end impunity, and votes against the establishment of a Special Tribunal, the EU must consider its response. The EU should urgently consider what measures it might be able to take against those individuals who are in a position of authority but fail to investigate and prosecute crimes against humanity or torture, whether committed in the context of the post-election violence or in the course of other security operations such as those in Mt. Elgon and Mandera where Human Rights Watch has documented abuses that appear to mount to war crimes and crimes against humanity. The principle of "command responsibility" requires that those who fail to prevent or prosecute such crimes should be held accountable.

We urge that you adopt strong GAERC conclusions now that may help prevent a crisis, rather than waiting until Kenya becomes the site of further crises in the future.

In particular we urge you to:

1. Repeat the concerns expressed by EU heads of mission in their statement of June 3 supporting Philip Alston's report to the UN Human Rights Council. It is important to avoid the impression that EU foreign ministers are setting a lower bar than their ambassadors when addressing serious human rights violations and impunity in Kenya.

2. Welcome the government's pledge made on July 3 to refer the situation in Kenya to the ICC if efforts in Kenya to establish a Special Tribunal fail within the coming months.

3. Make clear that a referral to the ICC, however, does not relieve the Kenyan government of its obligations to prevent, halt and remedy serious human rights violations committed by its police and security forces.

4. Insist that the Kenyan government take urgent measures to stem abuses by the police, hold officers accountable and implement reforms.

5. Call on the Kenyan government to prepare a bill with full consultation on the establishment of the special tribunal and call on parliament to pass such a bill before Kofi Annan's deadline.

6. Make clear that the EU may consider the imposition of targeted punitive measures against those deemed most responsible for serious human rights violations or for failing to investigate and prosecute such crimes.

In conclusion, we urge you to send a clear EU message that the Kenyan government and the Kenyan parliament must take the lead and bear primary responsibility for seeing justice done.

We thank you for your attention to this important matter.

Sincerely yours,

Lotte Leicht
EU Director
Human Rights Watch 

Georgette Gagnon
Africa Director
Human Rights Watch

CC:        EU High Representative for the Common Foreign and Security Policy, Dr.

              Javier Solana

              EU PSC Ambassadors

              EU Political Directors

              EU Member States Ambassadors to Kenya

              President of the European Parliament, Dr. Hans-Gert Pöttering