Judges at the International Criminal Court have sunk the last hopes of Kenya’s post-election violence victims receiving court-ordered reparations.
Two of the three Trial Chamber V(a) judges who terminated the crimes against humanity case facing Deputy President William Ruto and Journalist Joshua arap Sang on April 5, 2016, ruled that they could not entertain the filing by victims lawyer Wilfred Nderitu, or a response by the Trust Fund for Victims, filed last month. Nderitu, who is the common legal representative for the victims in the Ruto-Sang case, last month sought to have the court order the Kenya government to pay reparations to all victims of the 2007/8 post-election violence.
Judges Robert Fremr and Olga Herrera Carbuccia said there was nothing further the court could do, while Presiding Judge Chile-Eboe-Osuji disagreed.
“The Majority understands that while this might be dissatisfactory to the victims, a criminal court can only address compensation for harm suffered as a result of such crimes if such crimes have been found to have taken place and the person standing trial for his or her participation in such crimes has been found guilty.”
The judges’ decision leaves the issue of compensation for over 1,133 deaths from Kenya’s post-election violence, 600,000 displacements and thousands of physical and psychological harm from rape, torture and persecution at the mercy of the TFV, and the Kenya government.
Nderitu’s filing had pointed out that since the Kenya government had not contested the finding that it had politically meddled in the case and placed the safety of witnesses at risk through acts of commission and omission, it should be ordered to compensate everyone who suffered harm.
He had also pointed out that all existing efforts to compensate victims in Kenya, or deliver justice for them through investigations and prosecutions were half-hearted and meaningless. The Kenya government did not respond to the filing.
Read Judge Osuji's view:kenya-could-be-ordered-to-pay-reparations-to-victims-of-violence
By Terry Jeff Odhiambo
Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.
The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.
Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan, to the Central African Republic to Egypt and Ethiopia, abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.
The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders.
Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo, Rwanda and Niger are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.
Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries.
The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31). They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.
The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa.
Kenya's Chief Justice,David Maraga has asked the Kenyan police for the protection of the Judiciary.Read More
Kenyan police have a long history of using excessive force against protesters, especially in the western counties such as Kisumu, Siaya, Migori, and Homabay, where Odinga has had solid support for over 20 years.
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