User:Pi/International Criminal Court investigation in Kenya

Situation in the Republic of Kenya

The seal of the International Criminal Court
File no.	01/09
Referred by	Pre-Trial Chamber II
Date referred	31 March 2010
Date opened	31 March 2010 (2010-03-31)
Incident(s)	2007–2008 Kenyan crisis
Crimes	Crimes against humanity: · Deportation · Inhumane acts · Murder · Persecution · Rape
Status of suspects
Mohammed Ali	Charges not confirmed
Uhuru Kenyatta	Charges withdrawn
Henry Kosgey	Charges not confirmed
Francis Muthaura	Charges withdrawn
William Ruto	Charges vacated
Joshua Sang	Charges vacated
Walter Barasa	Fugitive
Paul Gicheru	Fugitive
Philip Bett	Fugitive

The International Criminal Court investigation in Kenya or the situation in the Republic of Kenya is an investigation by the International Criminal Court (ICC) into the responsibility for the 2007–2008 post-election violence in Kenya. The 2007–2008 crisis followed the presidential election that was held on 27 December 2007. The Electoral Commission of Kenya officially declared that the incumbent President Mwai Kibaki was re-elected however supporters of the opposition candidate Raila Odinga accused the government of electoral fraud and rejected the results. A series of protests and demonstrations followed, and fighting—mainly along tribal lines—led to an estimated 1,200 deaths and more than 500,000 people becoming internally displaced.

After failed attempts to conduct a criminal investigation of the key perpetrators in Kenya, the matter was referred to the International Criminal Court in The Hague. In 2010, the Prosecutor of the ICC Luis Moreno Ocampo announced that he was seeking summonses for six people: Deputy Prime Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgey, Education Minister William Ruto, Cabinet Secretary Francis Muthaura, radio executive Joshua Arap Sang and former police commissioner Mohammed Hussein Ali. The six suspects, known colloquially as the "Ocampo six" were indicted by the ICC's Pre-Trial Chamber II on 8 March 2011 on charges of Crimes against Humanity and summoned to appear before the Court.

On 23 January 2012 Pre-Trial Chamber II confirmed the charges against Kenyatta, Muthaura, Sang and Ruto and dismissed the charges against Kosgey and Ali. The charges against Francis Muthaura and Uhuru Kenyata were subsequently withdrawn by the prosecution. The trial of William Ruto and Joshua Arap sang began on 10 September 2013, and ended on 5 April 2016 with the charges being dismissed. During the investigation the ICC prosecutor also charged Walter Barasa, Paul Gicheru and Philip Bett with crimes against the administration of justice.

Background

Main article: 2007–2008 Kenyan crisis

On 27 December 2007, a general election was held in Kenya, comprising parliamentary, presidential and civic elections. The incumbent President, Mwai Kibaki, who represents the Party of National Unity and Raila Odinga from the Orange Democratic Movement were the leading candidates. Early indications showed that Odinga was likely to win the election, however the results announced by the Electoral Commission of Kenya showed that Kibaki had been re-elected and he was sworn in as President. Immediately after the Electoral Commission's announcement, Odinga rejected the result, claiming that widespread electoral fraud had taken place. European Union electoral observers also claimed that the electoral commission had failed to ensure the credibility of the vote.

In the days that followed violence spread throughout the country. An estimated 1,200 people died and more than 500,000 were displaced from their homes. A government spokesman accused Odinga's supporters of "engaging in ethnic cleansing", while Odinga claimed that the President's supporters were "guilty, directly, of genocide". Violence was mainly perpetrated along tribal lines; Mwai Kibaki is part of the Kikuyu tribe, the largest tribe in Kenya, while Odinga is a Luo. Violence continued until a peace deal was agreed upon between Kibaki and Odinga under the mediation of former United Nations Secretary-General Kofi Annan, whereby Kibaki would remain as President and Odinga would take over the newly created office of the Prime Minister.

Waki report and referral to the ICC

As part of the mediation between Kibaki and Odinga in 2008 the two parties agreed a series of accords. One of these was to establish the Commission of Inquiry into the Post-Election Violence, chaired by Kenyan judge Philip Waki to investigate the violence and particularly the actions of the police. Waki's report recommended that the Kenyan government set up a special tribunal to prosecute those responsible for the worst crimes. and although both Kibaki and Odinga voiced support for a local tribunal, the idea was rejected by the National Assembly. Waki passed his report, including a list of the names of those he considered most responsible for the violence back to Kofi Annan with instructions that it be passed to the International Criminal Court if progress with the local tribunal was not made. On 16 July 2009 the Waki commission delivered a copy of his report along with six boxes of documents and supporting materials to the International Criminal Court along with a sealed envelope containing a list of people who could be implicated in the violence. The prosecutor, Luis Moreno Ocampo opened the envelope, inspected its contents and re-sealed it. Initially the ICC gave the Kenyan government a deadline of July 2010 to establish a local tribunal before it would refer the case to the ICC Prosecutor Luis Moreno Ocampo. The "Waki List" has so far not been made public, and there is speculation that it may contain more names than the six who were initially indicted by the ICC; consequently there have been some calls in Kenya for either the ICC or Waki to release the list.

Pre-Trial Chamber authorisation

The International Criminal Court's prosecutor may open a formal investigation in one of three circumstances: when a situation is referred by the government of a state which the investigation concerns, when the situation is referred by the UN Security Council or under his own volition with authorisation from a Pre-Trial Chamber. On 6 November 2009 the ICC Presidency assigned the situation in Kenya to Pre-Trial Chamber II and the prosecutor made an application to that chamber for authorisation to open a formal investigation on 26 November. The judges of the pre-trial chamber granted this authorisation on 31 March 2010. The judges who made this decision, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser noted in their written ruling that while Article 15 of the Rome Statute does allow for the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC. In the ICC's history, this case was the first time the Prosecutor decided to investigate a case in this manner, with all prior cases being referred to the Court either by a national government, or by the United Nations Security Council.

Judge Hans-Peter Kaul made a dissenting opinion in the judgment, but the judgment was passed by a 2–1 majority. In his dissent he wrote:

In essence, the main reason for this position is the following: both, my interpretation of article 7(2) (a) of the [Rome] Statute, which sets out the legal definition of "attack directed against any civilian population" as constitutive contextual element of crimes against humanity, and my examination of the Prosecutor's Request and supporting material, including the victims' representations, have led me to conclude that the acts which occurred on the territory of the Republic of Kenya do not qualify as crimes against humanity falling under the jurisdictional ambit of the Court.

— Hans-Peter Kaul