Institute for War and Peace Reporting | Giving Voice, Driving Change

ICC Prosecutor Urged to Seek Further Kenya Charges

Post-election shootings in Kisumu and Kibera absent from current charges against senior political figures.
By Nzau Musau

Rights activists say international indictments in cases arising from post-election violence in Kenya in 2007-08 must be expanded to cover killings and other abuses committed by police in a Nairobi neighbourhood and the city of Kisumu. 

Judges at the International Criminal Court, ICC, removed the two elements when they considered the prosecutor’s application for charges in March, saying there was insufficient evidence to pin them to the individuals accused.

Lawyers say the failure to charge three of the six suspects with the shootings means the victims of violence in Kibera and Kisumu feel left out of the justice process.

Kibera, a slum area of Nairobi, and Kisumu in western Kenya experienced some of the most brutal attacks in the violence that followed a December 2007 presidential election. The Commission of Inquiry into the Post-Election Violence, set up in February 2008 to investigate the violence, found that overall, the police killed 405 of a total of 1,100 people who died during the violence, and injured a further 557. The vast majority of killings by police are thought to have occurred in Kibera and Kisumu.

When he formulated charges against six senior figures accused of responsibility for the violence, ICC prosecutor Luis Moreno-Ocampo accused a group of three of them, who fall into one of the two cases he brought, of being behind the Kibera and Kisumu attacks.

The three are Francis Muthaura, chairman of the national security advisory committee, Deputy Prime Minister Uhuru Kenyatta, and Hussein Ali, Kenya’s former police commissioner. All were senior members of the Party of National Unity, PNU, and are accused of orchestrating the violence to hold onto power in the aftermath of the disputed election. The other case brought by Moreno-Ocampo involves leading figures from the PNU’s opponent, the Orange Democratic Movement, ODM,

When ICC judges issued their ruling on Moreno-Ocampo’s application for charges on March 8, they found insufficient evidence had been presented to link the three PNU suspects to events in Kibera and Kisumu.

The judges said there were reasonable grounds to believe that Kenyan police shot and killed more than 60 people in Kisumu, and that police killed and raped civilians in Kibera. However, they took the view that the prosecutor had failed to demonstrate that crimes in Kibera and Kisumu were part of a wider state policy, so that they would fall within the court’s jurisdiction.

“The material presented by the prosecutor does not provide reasonable grounds to believe that the events which took place in Kisumu and/or in Kibera can be attributed to Muthaura, Kenyatta and/or Ali under any mode of liability,” the judges said in their ruling.

The judges’ ruling provoked outrage among victims and raised questions about the scope of the justice process, given the omission of two key focal points of the violence.

“[Nairobi] experienced a lot of violence and Kibera was the epicentre of it,” Priscilla Nyokabi, executive director of the legal aid centre Kituo Cha Sheria in Nairobi, said. “It will be so bad if Kibera is not made to feel a sense of justice.”

According to Godfrey Musila, an expert on international law based in Nairobi, “Ideally, charges brought by the prosecutor should reflect patterns of the violence. It undermines the court when the perception around is that the epicentres of the violations are out of the scope of the cases.”

Rights activists and legal experts are urging the ICC prosecutor to renew his request for judges to include Kibera and Kisumu in the charges against Muthaura, Kenyatta and Ali.

Moreno-Ocampo told IWPR in early December that he was gathering additional evidence on crimes committed in Kibera and Kisumu, but that he would not decide whether to ask for these charges to be added to the case until ICC judges had assessed his evidence of other crimes.

"We have evidence regarding Kibera and Kisumu, and we continue to collect more. The [office of the prosecutor] will decide on requesting that charges be added to the current cases after the decision on confirmation of charges,” he said.

The judges’ decision on whether to confirm charges of crimes against humanity in the two Kenyan cases is expected by mid-January.

Some legal experts are uncertain whether Moreno-Ocampo will be able to find evidence showing that Kenyatta, Ali and Muthaura were responsible for the shootings. This is crucial if he is to make a second attempt to bring additional charges.

In order for actions to qualify as crimes against humanity, and thus to prosecute them at the ICC, there must be reasonable evidence that they formed part of a widespread or systematic attack pursuant to a state or organisational policy.

Musila said the prosecutor failed to establish such a policy existed for what happened in Kibera and Kisumu, because his application for charges described responsibility in terms of a network of individuals, as opposed to a state policy.

At the time of the violence, Kenyatta was not a member of the government. There was therefore no clear hierarchy that the prosecutor could cite as an argument that attacks stemmed from a state policy. He has said there was no such policy, and instead submitted that the attacks were triggered by a “network that furthered an organisational policy”.

Musila hopes that if and when the prosecutor asks judges to approve the Kibera and Kisumu charges, he will use this second submission to frame the attacks as a state policy, given that the two other suspects were serving in government at the time.

“The prosecutor’s approach is where he failed. He created [the legal characterisation of] an organisation outside the state and had to go the extra mile of linking police to this group. It would have been easier to pursue the state policy approach, as Muthaura and Ali were state officials,” Musila said.

During confirmation of charges hearings at the ICC in September, the New York-based advocacy group Human Rights Watch released a report noting that the judges’ decision to strike out the charges in March “shows the difficulty of linking individual acts of excessive force to policy and attributing responsibility”.

The omission of charges relating to Kisumu and Kibera leaves substantial groups of victims out of the ICC process. As things stand, people from the two places will not get justice for atrocities committed there. Nor will they be eligible for compensation should the ICC suspects eventually be found guilty of the charges brought against them.

In cases brought before the ICC, victims are able to make submissions to judges throughout the proceedings, and have legal representation. However, the role of victims at the investigatory stage is limited. And once a case is opened, only victims who are registered in that case can make representations to the judges.

Observers say that because events in Kibera and Kisumu are not part of the cases before the ICC, victims in those places have effectively been silenced.

“That is where the system [of victim participation] is not working well,” said David Donat Cattin of the non-government group Parliamentarians for Global Action.

Donat Cattin said that in theory, victims from other parts of Kenya who have been admitted as participants in the two cases could petition ICC judges to review the prosecutor’s investigations in Kibera and Kisumu.

However, as Elizabeth Evenson, a senior counsel with Human Rights Watch, points out, judges might regard such a petition as beyond the scope of the victims concerned, since they personally were not affected by violence in Kibera or Kisumu.

Another avenue open to victims is to provide information directly to the office of the prosecutor. According to Nick Kaufman, who represents victims in the Darfur case before the ICC, those in Kibera and Kisumu have little option but to “keep petitioning” the prosecutor and supply him with evidence that persuades him to attempt to revive the Kisumu and Kibera charges.

Kaufman stressed that “as hard as it may be for the victims”, it is for the prosecutor to decide which charges to bring and whether he has enough evidence to back them up.

If the prosecutor does not find sufficient evidence to resubmit a request for crimes committed in Kibera and Kisumu to be added to the charge sheet in the Muthauru/Kenyatta/Ali case, rights groups say the Kenyan authorities should look into these abuses themselves.

While six senior figures face charges at the ICC, the Kenyan is being urged to set up its own national tribunal to try other, lower-level figures accused of playing a role in the post-election violence.

Nyokabi of Kituo Cha Sheria sees this as an opportunity to fill in the gaps.

“The prosecutor has other charges to work on, and it could be that he does not have enough capacity to concentrate on what has been rejected. Moreover, other charges may still be dropped as we move on, and so it is the duty of the state to pick up from where he fails,” Nyokabi said.

Nzau Musau is a reporter in Nairobi.