Kenyan authorities had on three occasions failed to establish a national mechanism to investigate and prosecute those responsible. In March 2011, the ICC issued summonses to appear for six high profile suspects from both sides of Kenya’s political conflict, but both cases against four suspects -two of whom would go on to assume the Kenyan presidency - were eventually withdrawn due to a lack of evidence due and to what the prosecutor alleged as widespread witness interference. Kenya’s 2007-8 PEV cases prompted an anti-ICC campaign, including intimidation and threats against civil society, threats to withdraw from the Rome Statute and attempts to interfere with ICC judicial decisions, at the highest levels of the Kenyan government.
ICC prosecutor opens first proprio motu investigation
In November 2009, the ICC prosecutor for the first time used proprio motu powers to seek authorization to open an investigation absent a referral from an ICC member state or the UN Security Council. In a March 2010 majority decision, Pre-Trial Chamber (PTC) II found a reasonable basis to proceed with an investigation into Kenya’s 2007-8 post-election violence (PEV), agreeing that the prosecutor’s preliminary examination suggested Kenya’s failure to establish a competent domestic tribunal to prosecute perpetrators of the widespread violence. ICC issues summonses for six high-profile Kenyans.
In March 2011, PTCII issued summonses to appear for six high-profile suspects from both sides of Kenya’s 2007 elections and suspected of orchestrating attacks on rival political supporters. All six made their initial appearances before the Court in April 2011. One ICC case involved ODM politicians Henry Kosgey and William Ruto, who would become deputy president, and radio broadcaster Joshua Sang. Another case involved PNU politicians Uhuru Kenyatta—later president—and Francis Muthaura as well as a former police commissioner, Mohammed Hussein Ali.
Judges send Kenyatta/Muthaura and Ruto/Sang to trial
In January 2012, PTCII approved the cases against Ruto and Sang and against Muthaura and Kenyatta for trial following confirmation of charges hearings in September and October 2011 respectively. In May 2012, the Appeals Chamber unanimously rejected defence challenges to the ICC’s jurisdiction over the Kenya situation. PTCII judges declined to confirm charges against Kosgey and Ali.
All charges withdrawn as witnesses recant evidence
In March 2013, the ICC prosecutor withdrew all charges against Muthaura, citing issues with recanting witnesses and Kenya’s limited cooperation and failure to assist in uncovering crucial evidence. In December 2014, the prosecutor withdrew charges against Kenyatta prior to trial, citing similar challenges. In April 2016, a majority of judges in Trial Chamber V(a) concluded there was insufficient evidence to continue the Ruto/Sang trial, which had been running for a year and which the prosecution alleged was plagued by witness-tampering. The OTP stressed the possibility of re-opening the cases should new evidence appear.
Arrest warrants for witness-tampering in Kenya cases
Witness-tampering allegations featured heavily in the ICC cases related to Kenya’s 2007-8 PEV. Many prosecution witnesses recanted their statements while others disappeared. The prosecution alleged bribery in exchange for recantations or withdrawals and received authorization to issue arrest warrants charging three Kenyans with offenses against the administration of justice.
Kenya’s anti-ICC campaign
While the ICC proceedings against them were ongoing, Kenyatta and Ruto decided to run jointly in Kenya’s March 2013 presidential election, with Kenyatta elected president and Ruto his deputy. Both were accused of using the cases against them as platforms to frame the ICC’s interests in Kenya as western and of exploiting their official status to influence judicial proceedings at the ICC.
At the international level, Kenya attempted, but ultimately failed, to rally UN Security Council support in favor of deferring the ICC’s 2007-8 PEV cases. Kenya also appealed to fellow African Union (AU) members to collectively pressure the ICC, denouncing the ICC as a discriminatory institution and calling for withdrawal en masse if, for instance, official immunity was not recognized or the charges against Kenyatta and Ruto not withdrawn.
Threats to withdraw from the Rome Statute
At the national level, members of the Kenyan government repeatedly threatened to withdraw from the Rome Statute as part of Kenya’s plan to forestall the 2007-8 PEV cases. In September 2013, anti-ICC lawmakers introduced an unsuccessful vote on Kenya withdrawing from the ICC, repealing domestic international crimes legislation, and ceasing to cooperate with the Court. The plan was strongly opposed by the Coalition’s Kenyan, African, and international civil society members.
ASP sessions under intense pressure from Kenya
At the 12th ASP session in November 2013 and under intense pressure from Kenya, States Parties adopted changes to the Court’s Rules of Procedure and Evidence (RPE) regarding summonses to appear, allowing presence at trial to be excused for those fulfilling "extraordinary public duties at the highest national level." It remained with the ICC trial judges to decide on any request, taking into account factors such as the interests of justice and the nature of the hearing in question. The Coalition questioned the process that led to the changes.
The appearance of the accused in the courtroom via video-link, the use of prior recorded testimony during proceedings, and the discretion of trial judges to hold hearing outside The Hague were also made possible by the 2013 RPE amendments.
In the run-up to 13th ASP session in December 2014, civil society strongly opposed a proposal by Kenya to amend the Rome Statute to allow immunity for heads-of-state and high government officials.
At the 14th ASP session in November 2015, governments agreed to accommodate Kenya’s proposed agenda item on the application of RPE rule 68 on the use of prior-recorded witness testimony, an issue that was under appeal in the Ruto/Sang trial. While the session ended without any decisive action by states parties, governments agreed to include in the Assembly’s final report an interpretation of rule 68. The Coalition denounced the dangerous precedent set by attempting to politically influence issues under judicial review.
Kenya fails to establish national mechanism to try 2007-8 PEV
Domestic attempts at addressing the PEV included the establishment of the Truth, Justice and Reconciliation Commission and government discussions on the use of existing criminal courts in place of a separately convened tribunal. Constitutional amendments that would have established such a tribunal, as recommended by the Waki Commission, thrice failed to achieve the requisite consensus in parliament, resulting in Kenya missing the negotiated September 2009 deadline—agreed upon by Kenya and the ICC prosecutor in July 2009—to initiate national prosecutions.
Waki Commission shares evidence of 2007-8 PEV with ICC prosecutor
In July 2009, following the failure to establish national accountability mechanisms for the PEV violence, the ICC prosecutor received six boxes containing documents and supporting material compiled by the Waki Commission, an international commission of inquiry established by Kenya to investigate the 2007-8 PEV.
The Waki evidence also contained a list of suspects the Commission deemed most responsible for the PEV. In addition to the materials supplied by the Commission, the ICC prosecutor received information from Kenyan authorities on witness protection measures and the status of national legal proceedings.
Many civil society organizations welcomed the ICC’s move to bring the highest possible ranking officials in Kenya to account, demonstrating that no one is above the scrutiny of the law. Kenyan civil society has been at the forefront of calling for justice for victims of Kenya’s 2007-8 PEV, supporting the ICC process, and actively opposing political attempts to interfere with the cases or undermine the ICC at the national and international levels. This support has come at the price of intimidation and a diminishing space in which to operate.
However, with the withdrawal of the ICC’s 2007-8 PEV cases, some civil society groups have expressed doubt about the ICC’s ability to overcome political challenges and disappointment at the Trust Fund for Victims' inability to deliver general assistance to victims over the almost eight years that the ICC dealt with the PEV cases, Kenyan authorities’ lack of cooperation and witness protection, and the lack of initiatives at the national level to secure comprehensive justice for victims of the 2007-8 PEV.