Ambiguity: The ICC finds it Difficult to Define Genocide in Kenya
The ICC investigation in Kenya is a current investigation by the ICC regarding the perpetrators of violence in Kenya after the 2007 election that was controversial. The violence occurred after the disputed presidential election held in 2007-2008. In this dispute, the opposing party, Orange Democratic Movement (ODM), headed by Raila Odinga, claimed that the results announced by the Electoral Commission (ICC) were fraud in favor of Party of National Unity (PNU), headed by Mwai Kibaki. The supporters of Raila rejected the results claiming that they were flawed. The moment the president had been sworn in as the head of state, violence erupted in the country, mainly on tribal lines . This mayhem caused numerous displacements, injuries, and deaths amongst the ethnic groups that seemed to hate each other. After the Kenyan courts failed to perform investigations of the crimes, the case was forwarded to the ICC, in Hague.
Genocide may be considered to be as old as humanity. The input of the ICC in genocide law is has been significant. While the judicial decisions are regarded as a supplementary way of developing the international laws, they are critical to the recognition of the application of law. Genocide is an attack on certain groups based on religion, ethnicity, or race and this case it was based on ethnicity. The status that is elevated exists because individuals who commit the genocide had certain targets, which were the ethnic groups. There were concerns by the ICC that the Kikuyu were amongst the “protected groups”. This is because most attackers, who were from the Mungiki sect (Kenyan gang) never, attacked this group. The communities that were not under “protected groups” were the Luos and the Kalenjins. The experience that Kenya faced and the ICC jurisprudence will shape the idea of genocide with regards to international law and will protect groups like the Luo and the Kalenjin community.
The ICC had the jurisdiction to prosecute crimes against humanity and genocide that took place in Kenya in the 2007/2008 post election violence. The Tribunal had a purpose of bringing national reconciliation and restoring peace amongst the ethnic groups in Kenya. The ICC also had a purpose of ending genocide and other serious crimes that are against international law. What raises the acts that are listed in the Convention of genocide is the intent that the crime needs. This is what makes genocide “crime of all crimes”. The concept of common law matches with the Roman systems. The intent of the genocide was to wipe out the “protected group”. This extra element is what brings the crime elements to genocide. The ICC recommended that special intent ought to be formed with regards to the acts of genocide. The ICC had a rough time trying to judge the special intent. Some people have accused the ICC of not having high standards.
The pre-trial Chambers at the ICC argued that both and individual and a group are victims because of the special intent. It argued that genocide is a crime against a certain group and that makes the group and individual a victim. It was evident that the Kalenjins and the Luos were not amongst the “protected groups”. The jurisprudence of the ICC suggested for a determination of the main issues under its statute. One of the issues that is suggested was description of the intention of the attacks and another issue was if a subjective or an objective strategy was to be taken to recognize the targeted groups. This is where the ambiguity occurs. While the ICC strive to investigate the targeted ethnic groups, it failed to recognize that Kenya has numerous other ethnic groups. In fact, Kenya has more than 42 ethnic groups. However, the dominant ethnic groups are the Kikuyus and the Kalenjins. This becomes ambiguous because it would be almost impossible for the ICC to determine which groups targeted the other because of the numerous ethnic groups. How would the ICC manage to identify the “protected group” in a nation that has over 42 ethnic groups that were fighting against each other?
This question may be answered by looking at the main ethnic groups that were involved in the genocide. The ICC identified that the main suspects Uhuru and Muthaura came from the Kikuyu tribe, which is the dominant ethnic group in Kenya. Another suspect was William Ruto who comes from the Kalenjin community. The ICC also identified that the Mungiki sect was made of the kikuyu ethnic group. With these two main groups, the ICC recognized that these were the main tribes that were fighting. However, the ICC failed to recognize the Luo tribe, which was another ethnic group that participated in the genocide. However, there was no prime suspect in the ICC that came from this tribe. Although there was no suspect from the Luo tribe, it may not mean that the Luo community did not participate in the violence. In fact, it was reported that there were as much crimes in the Luo Nyanza province as there were in Rift valley,Nakuru and Naivasha. The Kalenjins come from the Rift Valley province while the Kikuyus come from Naivasha and Nakuru.
With these examples, it means that the main tribes that were at war were the Luo, Kikuyus and the Kalenjins. However, the ICC faced a lot of challenges trying to establish which tribes were fighting the other, and which ones were not. It is clear from the announcement of the presidential results that Raila, who comes from the Luo tribe, claimed that Kibaki, who comes from the kikuyu tribe, had stolen elections from him. Raila was in a coalition party with Ruto (ODM) and this clearly suggests that the tribes that were at war were the Kikuyus against both Luos and Kalenjins. This means that the Luos and the Kalenjins had collaborated to fight against the Kikuyus. This may also bring the question of who may and who may not fall under the protected group.
These are challenges and tensions that are common in the trials of the ICC and also other international courts. However, for the Kenyan case, the Defense argues that the preparations are obscured because the Prosecution case just revealed the current new information that was not part of the case. According to the allegations of the Defense team that is confirmed through the transcripts readings of confirmation of charges and analysis of the decision of the charges, the pre-trial cases were merely based on the report of the 8 and 12 Kenyan witnesses for the first and second cases respectively. In the cases of trial, the Prosecution plans to present 41 witnesses for the cases of Sang and Ruto, and 34 witnesses for the cases of Kenyatta and Muthaura . To further complicate the matters, the Prosecution has chosen to avoid calling some witnesses that it depended on in the phase of trial.
The reason for the argument of the Defense that the Prosecution was “morphed” is not on the considerable augmentation in the witness numbers, or the material that ought to be reviewed by the Defense. When there are more witnesses to testify in court, new information will come to support the allegations of the Prosecution. Just like the other international crimes, the linkage of evidence is crucial in proving the accused person participation in the crime. As disclosed by the charges’ confirmation hearing and the decision, in the first case, the prosecuted depended on testimonies that showed that the accused persons were available at significant meetings that involved the main steps in organizing the violence. The Defense counsel claim that the new witnesses offered information of the new meetings that took place within a long period. With this new information offered, the Defense needed to conduct more investigations of what occurred, but it failed to perform further investigations.
In some filings, the Prosecution contended that it had conformed to the disclosure deadlines and any delays that occurred were caused by the obstruction of the witness and wastage of time in implementing the protective measures. The Prosecution further stated that these were matters that were beyond its control. With consideration to the change of the cases, the Prosecutor’s office argued that the extra information was logical because the lower threshold was essential for the confirmation of the charges. The office also stated the necessity of offering appropriate information to the charges during trial. However, the Prosecution failed to reject postponing the trials in view of the operational challenges of the court plus the courtrooms shortage. Additionally, the cases of Kenyatta and Muthaura may be taken back to the pre-trial chamber, in respect to Muthaura’s case. This is because the Prosecution team was willing to bring evidence concerning the case of the death that occurred in Naivasha province that the pre-trial chambers had not confirmed. The Prosecution team was also willing to introduce information that would confirm the integrity of the witness.
However, beyond the fair, institutional or procedural issues, there is a higher and broader question that is relevant. Kenya was in the climax of presidential campaigns for the new president in 2013 . This was going to be the first election to occur after the election that was disputed in 2007 and bought the top officials in trial. While these campaigns were taking place, the two big fishes, William Ruto and Uhuru Kenyatta, were being prosecuted at the ICC. These two big fishes at the ICC were also running for the top jobs in their countries. It was also surprising to note that Uhuru Kenyatta was popular amongst Kenyans and was viewed as one with the potential of becoming the next president. However, these people still continued to appear in court while they were conducting campaigns for presidency in Kenya. This brings many questions whether these people will still cooperate with the ICC if they garner the top seats, which they eventually did. In a presidential debate that was conducted by the media fraternity in Kenya, Kenyatta urged Kenyans to avoid violence the way they did in 2007-2008, after the disputed elections . The weeks that followed the elections of 2013 will be marked by historical political occurrence.
On 9 April, 2013, Uhuru Kenyatta got sworn in as Kenya’s fourth president, after the Supreme Court had rejected Raila’s petition. President Uhuru and his deputy Ruto, are still facing trial, which is to be held on May this year at the Hague. William Ruto with is counter-part, Sang, will resume the trial on 28 May this year. Uhuru will face trial on 9 July. The ICC scheduled the trials to commence on April, but for political reasons, the trials were postponed. However, the charges against Francis Muthaura had already been withdrawn by March. The chamber did not confirm the charges against Hussein Ali (former police commissioner) and Kiprono Kosgey (former Minister for Industrialization).
With these cases at hand, the ICC might find it quite challenging to determine the authenticity of the genocide that occurred in this nation. The fact that Uhuru Kenyatta has been sworn in as the fourth president of Kenya will give the ICC a rough time in making judgment on who is and who is not guilty. Besides, Uhuru Kenyatta has been a popular leader in the history of Kenya and prosecuting him or charging him with crimes against humanity would be absurd. Uhuru may have been involved in the crimes, but he has too many supporters from his country that it would seem quite insane for him to be prosecuted. The government of Kenya is also not willing to offer the ICC with the relevant documents or files that can help the ICC in conducting investigations. There are also few witnesses who are willing to testify in court. In fact, there was only one potential witness 4, who was ready to testify, but he later changed his mind about what he had said to the courts. For the ICC to determine the guilty people, it must rely on the government of Kenya and the people of Kenya, who are both not willing to work with the ICC. It would be almost impossible for the ICC to do these investigations if the people of Kenya are not willing to cooperate.
The ICC Case Interpretations
All states that form parties to the Statute of Rome, in the treaty of ICC, must cooperate with the prosecutions and investigations of the ICC. Kenya joined the Statute in 2005 and must also cooperate with the obligations through the Act of International Crimes . Cooperation may involve a number of forms and may include response to requests for help to serve documents, freeze assets, surrender or arrest people, protect witnesses, execute searches, and offer evidence prior to arrest warrants of the ICC. If a state fails to cooperate with the ICC, the state can find non-cooperation by the judges of ICC and the transfer from the states parties . The government of Kenya signed an agreement with the ICC in 2012 and it has also facilitated some of the activities of the court within Kenya. However, the ICC claims that the government of Kenya has failed to assist them in establishing the right evidence and access to the records of the government. The Prosecution also claims that the previous government failed to act, despite the numerous requests to bring a resolution to the domestic lawsuit that challenges the ability of the Prosecution to take proof from the leading police officers. The Prosecutions claims that one of its reasons for withdrawing Muthaura from the charges is that it had little assistance from the government of Kenya. The prosecutor merely claimed that she did not seek a formal investigation and did not get any cooperation from Kenya. However, she said that she would continue to engage the Kenyan government and seek cooperation too.
The ICC relies on the support from the public for the partnered countries and other parties that may be interested in creating a working environment. The Kenyan government initiatives appeared to present the opposite effect. Members of parliament and top officials of the Kenyan government sought to bring the case back home. The Kenyan government also sought to withdraw from the agreement that it signed with the ICC. However, the Kenyan courts have rarely prosecuted any crimes after the skirmishes that occurred.
The ICC withdrew from the Muthaura case on 18 March, 2013, after the prosecutor filed a note on 11th of March that she had withdrawn the charges. The prosecutor reported that she was experiencing several challenges and obstacles that would have enabled her to further investigate the case of Muthaura. This was partly because some of the witnesses against Muthaura had passed away, while others feared to come forward. There was also a lack of cooperation with the government of Kenya. The government of Kenya had failed to offer the Prosecution office with the evidence and help its access with the witnesses. Another key witness, referred to as witness 4, had also withdrawn from the case.
The prosecution team relied on the testimonies of witness 4 or James Maina Kabutu for the trial of Muthaura. His testimonies would help the court in determining the involvement of Muthaura in the violence . The witness was to testify that Muthaura and President Uhuru had a meeting that would direct the Mungiki (criminal gang in Kenya) to conduct the crimes against other ethnic groups . Maina Kabutu said that he was present at the meeting and was the only witness who was against Muthaura. The defense team of Muthaura challenged the authenticity of the witness, but the chamber realized that the witness’s testimony was reliable.
After the confirmation of charges, the witness claimed in an interview that he did not say the truth in some parts of his testimony, and had accepted bribe to withdraw from the testimony. Consequently, the Prosecutor’s office opted out of the witness for trial. It became known that during the pre-trial hearing, the Prosecutor’s office had accessed the witness’s official declaration looking for safe haven in another country that he indicated he had heard of the meeting held from another party. The defense team of Kenyatta contended that this indicated that the witness was, in fact, not at the meeting, and this disvalued the testimony. The Prosecution admitted that it went astray when it did not reveal the official declaration. With the failure of the disclosure, the defense contended that the systematic failures were a mistake. The defense also claims that Kenyatta’s case has to be dropped in the same way as that of Muthaura.
The defense team for Kenyatta contends that his case should be dropped, in the same way as Muthaura’s case. The prosecutor of the ICC had insisted that the fact that Muthaura had been withdrawn from his charges did not imply that Kenyatta would also be withdrawn. The prosecution team contended that while the pre-trial chamber had disregarded the evidence of witness 4 because of the safe affidavit, it would still get considerable grounds to confirm the accusations against Uhuru Kenyatta. If there were an order of a new pre-trial process, the prosecution said that it still possessed the extra proof to support the confirmed charges. The judges as the ICC had shown that they may consider the trial chamber’s powers to make a decision if the disclosure affected the credibility of the decision that confirmed the charges. The ICC judges also showed that if the trial chambers found errors in the decision, they would order the prosecution to withdraw or amend the charges . The court also showed that they may consider whether Kenyatta may be charged as perpetrator of the violence without Muthaura’s charges. The ICC judges also considered the extent to which the prosecutor was allowed to perform investigations after the decision of the charges.
With the witness 4 withdrawing from his testimonies, many questions arise that may ring into an individual’s mind. Questions like whether or not the witness was bribed or whether he feared for his safety or the Presidency of Uhuru Kenyatta. This also brings questions regarding the decision of the court. It is possible to ask him whether the courts may have decided to withdraw the cases because of the Presidency of Uhuru Kenyatta. The prosecutor at the ICC argues that the scale of meddling with the witnesses in the cases of Kenya is unparalleled because the witness gets threats on their families. The prosecutor said that one of her reasons to drop the case was because some of the witnesses who might have seen Muthaura in the meeting failed to turn up and testify. The victims who took part in the ICC had mentioned that they were fearful of the safety of their lives and the future of the families. The Prosecution claimed that some witnesses must have been bribed, plus witness 4. However, the court declined the reports of the media that only eight witnesses had withdrawn their evidence.
Since the witness 4 had withdrawn from his testimonies and allegations that Muthaura had been in the meeting with the Mungiki, the defense team claimed that the court would not have got considerable grounds to prove the accusations against Kenyatta. The defense team also claims that since the Prosecution had failed to disclose the affidavit, the credibility of the charges would be undermined. The defense team asked the court to withdraw the case or send the case through the pre-trial procedure to reassess the credibility of the fundamental decision to send it to trial.
The defense team of Muthaura suspected that the prosecution team had revealed the identity of the witnesses of the defense team and this endanger the security of the defense witnesses. Muthaura requested the trial chamber to order the Prosecutor’s office to tolerate its commitment to the witnesses of the defense team. The decision of the ICC to drop Muthaura’s charges shows how much challenges the Prosecution gets regarding investigations. These challenges include protecting the witnesses who come to testify and protecting the cooperation of the state . The Prosecution team faced many challenges, especially when it was conducting investigations in Kenya. It also faced many challenges collecting the evidence that connected the actions of the accused to the crimes that they had conducted. With the immense pressure of the partnering states to limit the budget of the ICC and the increase in the number of country locations for the court, the ICC has increased the pressure with which it handles its cases.
Discussion
The Human Rights investigation is concerned that the Prosecutor’s office strategies of investigation may require some amplification to tackle the challenges. ICC’s decision to drop the charges of Muthaura was the first case, although the Prosecutor has faced some challenges in its prosecutions. In December, the trial chamber of the ICC exonerated a Congolese warlord where the prosecution seemed appealing. The prosecution has also failed to bring forward enough evidence against four other defendants in Congo, Kenya, and Darfur to trial, which included Muhamed Ali and Henry Kosgey for the Kenya cases.
The Prosecutor of the ICC, who began her term in June, has showed that improving the investigations in the office and the prosecutions is one of her first precedence. She has worked for the ICC for nine years now. She argues that the investigative operations of the office should be adapted prior to the challenges of the court, although it may seem a difficult task. She said that it will be vital in ensuring that the ICC delivers justice, meaningfully and effectively. The Human Rights also encourage the prosecutor to recognize any reforms that may call for the parties of state and international partners to support the extra cooperation and resources. This should include the protection of the witnesses to improve the investigation’s effectiveness.
The cases in Kenya are not that simple. These cases show how the top officials in the country participate in crime against their people. These cases indicate that Kenyans are divided by ethnic tensions and the resources in the country are not distributed equally amongst people. They show how deeply this country is rooted in corruption since the days of its independence and accusations of lying witnesses. These cases are quite different from the ones that the ICC has ever conducted. The ICC has only been handling cases that involve crimes committed by the local militias against civilians. These are cases of crimes committed by the leaders of the country; therefore, the ICC ought to change its strategy of approaching the case.
Works Cited
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Stahn, Carsten, and Zeidy M. M. El. The International Criminal Court and Complementarity:
From Theory to Practice. Cambridge: Cambridge University Press, 2011. Print.
