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KenyaThe situation in Kenya is the International Criminal Court’s (ICC) fifth investigation. In March 2010, Pre-Trial Chamber (PTC) II authorized the ICC prosecutor to open an investigation into crimes against humanity allegedly committed in Kenya in relation to violence that followed Kenya’s 2007 presidential election, which killed over 1,200 and displaced 600,000.
This was the first time that the prosecutor used his “propriu motu” powers to initiate an investigation without first having received a referral from a state party or the United Nations Security Council (UNSC).
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Kenyatta, Ruto and Sang on trial for crimes against humanity
The trial of Kenyan Deputy President William Ruto and broadcaster Joshua Arap Sang began on 10 September 2013. They are suspected of planning and organizing crimes against humanity against perceived supporters of the Party of National Unity (PNU)— predominantly from the Kikuyu, Kamba and Kisii ethnic groups—during the 2007-08 post-election violence. Visit our Ruto/Sang trial webpage.
The trial of Kenyan President Uhuru Kenyatta is set to begin on 12 February 2014. He is charged with planning and organizing crimes against humanity against perceived supporters of the Orange Democratic Movement (ODM)— predominantly from the Kalenjin ethnic group—during the same period. Visit our Kenyatta trial webpage
Opening of the investigation
On 26 November 2009, the ICC prosecutor sought authorization from PTC II to open an investigation in relation to the crimes allegedly committed during the 2007-2008 post-election violence in Kenya. On 18 February 2010, pre-trial judges requested clarification and additional information from the prosecutor in order to decide whether to open an investigation. On 3 March 2010, the prosecution filed its response to this clarification request. On 31 March 2010, in a majority decision, PTC II held that there was a reasonable basis to proceed with an investigation and that the situation appears to fall within the jurisdiction of the Court.
Judges issue summons to appear for six suspects
On 8 March 2011, PTC II issued summonses to appear for Ruto, Henry Kosgey (a prominent ODM politician) and Sang [case one], as well as for Kenyatta, Francis Muthaura (a former head of civil service) and Muhammed Ali (a former police commissioner) [case two], in relation to their alleged roles in the 2007-08 post-election violence. They made their initial appearance before the Court in April 2011.
Judges confirm admissibility of the cases
On 31 March 2011 the Kenyan government challenged the admissibility of the cases before the Court pursuant to Article 19 of the Rome Statute, requesting that the two cases be declared inadmissible, and arguing that the adoption of the new Constitution and associated legal reforms have opened the way for Kenya to conduct its own prosecutions for the post-election violence. On 30 May 2011, PTC II rejected the Kenyan government’s challenges. On 30 August 2011, the ICC Appeals Chamber confirmed this decision.
Charges confirmed against Kenyatta, Muthaura, Ruto and Sang
On 23 January 2012, PTC II decided to move the cases against Ruto and Sang, and Muthaura and Kenyatta to trial following confirmation of charges hearings held in September and October 2011. The judges declined to confirm charges against Kosgey and Ali. The decisions were made by a majority of the Chamber, with Judge Hans-Peter Kaul dissenting. On 9 March 2012, PTC II rejected the applications of the four suspects for leave to appeal the decisions to send their cases to trial.
Charges against Muthaura withdrawn
On 11 March 2013, the prosecution withdrew all charges against Francis Muthaura stating that a critical witness recanted a significant part of his evidence and was dropped from the witness list.
Two trial chambers established
On 29 March 2012, Trial Chamber V was constituted to conduct the upcoming trials. However, on 21 May 2013, the ICC Presidency assigned the Ruto/Sang case to Trial Chamber V(a) and the Kenyatta case to Trial Chamber V(b).
On 26 April 2013, Judge Christine Van den Wyngaert had been granted a request to be excused from Trial Chamber V due to her expected workload. She was replaced by Judge Robert Fremr.
Lawmakers vote to withdraw from Rome Statute
On the eve of the opening of the Ruto/Sang trial in September 2013, Kenyan lawmakers supporting termination of the cases against Kenyatta and Ruto voted to withdraw from the Rome Statute, to repeal domestic legislation dealing with international crimes and to end cooperation with the Court. The Coalition has expressed strong opposition to the plan.
Kenyan civil society in the firing line
Kenyan civil society has been at the forefront of calling for justice for victims of Kenya’s post-election violence, supporting the ICC process and actively opposing political attempts to stop the cases. Their support has come at the price of intimidation and a diminishing space in which to operate.
Arrest warrant for journalist for witness interference
On 2 October 2013, Pre-Trial Chamber (PTC) III made public an arrest warrant against Kenyan journalist Walter Barasa for interfering with witnesses in the Kenya cases. The Court is seeking his transfer to The Hague. Attempts to expose witnesses in the cases have been condemned by the judges and additional protection measures have been taken.
ASP adopts new rules on presence of accused at trial
In November 2013, the ICC’s governing body - the Assembly of States Parties (ASP) - adopted changes to the Court’s rules to allow those mandated to fulfill "extraordinary public duties at the highest national level" to request excusal from presence at trial and to be represented by their legal counsel. The Coalition has questioned the process that led to the changes.
Background to the ICC investigation
Kenya ratified the Rome Statute in 2005 and became a state party to the ICC. By becoming a state party, Kenya accepted the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thereby opening the door for the prosecutor’s investigation into acts which are not being investigated and prosecuted by national authorities.
On 16 July 2009, the prosecutor received six boxes containing documents and supporting material compiled by the Waki Commission, an international commission of inquiry established by the government of Kenya to investigate the post-election violence that occurred between December 2007 and February 2008, following the presidential elections. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence.
The prosecutor also received information from Kenyan authorities on witness protection measures and on the status of legal proceedings carried out by national authorities. So far, national attempts at addressing the post-election violence have resulted in the establishment of the Kenyan Truth, Justice and Reconciliation Commission and discussions in the government to use the regular judicial apparatus instead of a specially constituted tribunal. Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, failed to achieve the requisite consensus in parliament, which meant that the Kenyan Government missed the deadline for initiating prosecutions by the end of September 2009, a deadline agreed upon by both the ICC prosecutor and the Kenyan government delegation that visited the ICC on 3 July 2009.
On 3 September 2010 in Nairobi, ICC Registrar Silvana Arbia exchanged letters on the necessary operational and legal framework for the Court to conduct its work in Kenya.
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