Too little, too late. That is Jacqueline Mutere’s assessment of the Trust Fund for Victims’ proposed assistance for victims of the 2007/2008 post-election violence in Kenya.
“It should have been part of the intervention during investigations into the case. After the case was launched in The Hague, the ICC investigators were in Kenya in less than two months… 13 years after the fact is against the principles of justice. It’s adding insult to injury,” she told Journalists For Justice (JFJ).
Mutere, founder and Director of non-governmental organisation Grace Agenda, has reason for her strong views on matters concerning victims of the post-election violence (PEV) that shook Kenya in the months before and after the December 2007 elections: She is a survivor of the violence that brought the International Criminal Court to the doorstep of the country that had for long been touted as a shining example of peace in the region.
Grace Agenda supports survivors of rape during conflict, especially those victimised during the 2007/2008 post-election violence.
“It has been a very long wait for survivors, hope shattered many times. Frankly speaking, 14 years is really a long time to wait and to take,” Betty Okero, Team Leader at the CSO Network, Kenya, agreed with Mutere’s sentiments about the delay. However, she also welcomed the initiative of the Trust Fund for Victims (TFV), saying it is fulfilling its promise and that the needs of survivors are still present and significant.
“Going forward, TFV must continue to review its victim support processes so that they are timely, efficient, and effective. No one deserves to have to wait for this long for any support or intervention,” she added during an interview with JFJ.
Kenyan human rights lawyer and transitional justice expert Njonjo Mue welcomed the fact that although it has taken a long time, the fund has included sexual and gender-based violence (SGBV) victims and survivors among the intended beneficiaries, saying that although this kind of violence was widespread, the people affected have for a long time been ignored by the Kenyan government, which was only concerned with resettling internally displaced persons (IDPs).
“It is obvious why they were focused on IDPs because they were visible in camps and tents. They had to make sure that the visible part of the PEV was dealt with,” Mue said, adding that the government was concerned about its image in the eyes of the international community.
However, the lawyer expressed concern that the North Rift region – the epicentre of the violence – is not listed among the areas to benefit from the TFV projects. He questioned the assessment criteria of picking the beneficiary areas – Nakuru, Nairobi, Western, Meru, and Mombasa.
“Meru and Mombasa are very odd and should not be on the list,” he said.
Mutere was also concerned about the focus area of the project, saying the TFV should have considered regions that suffered gross violations such as Mt Elgon, Uasin Gishu, Nyamira/Kisii, Kisumu, and Busia. “Meru wasn’t even a hotspot.”
She said the Office of the Prosecutor of the ICC should have been involved in the coordination of the fact-finding mission as the team the fund sent “…seemed to have no idea where to find victims and survivors”.
However, this is legally not possible because, according to the Rome Statute, which forms the basis of both the TFV and the ICC, the two institutions, both created by the Assembly of States Parties, play different roles in the transitional justice process.
“While the ICC investigates and prosecutes the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression, the TFV responds to the harm resulting from the crimes under the jurisdiction of the ICC,” the fund says on its website.
According to a notification filed before ICC’s Pre-Trial Chamber’s II, the TFV is in the process of setting up a project to provide physical and psychological rehabilitation, as well as material support to the Kenyan victims and their families.
“The specific activities focus on injuries stemming from crimes committed in the Republic of Kenya situation in general and are not designed to relate in any way to national or international proceedings or investigations,” the fund told Judge Rosario Salvatore Aitala (presiding), Judge Antoine Kesia-Mbe Mindua, and Judge Tomoko Akane.
The TFV explained that it had already selected a non-governmental organisation to carry out the implementation of the activities it has listed in an annex to the notification. However, it did not name the entity.
According to the fund, the objectives of the activities include ensuring that the victims of SGBV in the post-election violence of 2007/2008 receive medical treatment to help them heal from physical and mental trauma.
The project also aims to facilitate survivors to acquire socio-economic skills to enable them to have livelihood stability.
“Sexual violence survivors, like other victims of the PEV, suffered huge economic losses. SGBV survivors have lost their homes, land, businesses, livestock, and other property,” the fund said.
The first part of the three-pronged strategy of the activities is to provide holistic medical and psychosocial rehabilitative services to victims of SGBV. The services will include comprehensive medical rehabilitation and trauma-focused physiotherapy to help survivors who have suffered physical atrocities “including beatings, gunshot wounds, burns, rape, and forced labour”.
The second part will involve building and strengthening the capacity of a local network of service providers, composed of medical personnel and mental health counsellors, through psychologist training and clinical supervision, physiotherapist training, and mentorship.
The third leg of the project aims to empower the survivors with economic skills. This will include entrepreneurship skills, optimising digital opportunities, income-earning opportunities, and savings for sustainability purposes. By linking up the victims with existing opportunities to implement the skills they have acquired, the strategy aims to address sustainable action and benefits through economic empowerment and community integration.
Mutere cautioned about some of the project’s intended support.
“Psychological intervention may be more of a trigger than support towards healing,” she said, adding that children born out of rape, and who had needed the support in their first years of life, are now teenagers. She considered it ironical that many survivors had died while waiting for the intervention that they sorely needed and which was arriving at such a late stage. She said an approach supportive of medical aid/medical conditions, surgery, acquired disability, and livelihood assistance would add value to survivors’ lives.
Okero expressed concern that due to limited resources at the disposal of the TFV and the scope of its intervention in Kenya, many survivors in need will be locked out.
“It would be great if the Kenyan government was to match the TFV funds as a measure of committment to the survivors of sexual and gender-based violence who have had very little in terms of support to recover from the visible and invisible scars they bear and the impact on their lives that they continue to deal with,” she said.
Violence broke after the election results that ushered in President Mwai Kibaki’s second term were disputed by his main rival, opposition leader Raila Odinga. Attacks engulfed many parts of the country, leading to the death of more than 1,000 people and the displacement of thousands of others.
In one of the two Kenya cases before the ICC that resulted from the violence, Kibaki’s successor Uhuru Kenyatta and Francis Muthaura, a senior government official, who were facing five counts of crimes against humanity, had the proceedings against them terminated on March 13, 2015, upon the prosecution’s notice of withdrawal of charges due to insufficient evidence.
In the case against Kenya’s current Deputy President, William Ruto, and former journalist Joshua Arap Sang, the six counts of crimes against humanity were vacated on April 5, 2016, due to witness interference. This means they can be opened afresh in the future.
The current ongoing Kenya case at the ICC is against lawyer Paul Gicheru, who is facing charges of offences against the administration of justice consisting in corruptly influencing witnesses of the court between April 2013 and September 10, 2015.
Gicheru’s trial started on February 15, 2022 after he pleaded not guilty to the charges. The prosecution presented eight witnesses, who were all cross-examined by the defence. His counsel, Michael G. Karnavas, has notified the court that he does not intend to mount a defence, but has asked the court to admit new evidence other than through a witness.
The Trust Fund for Victims was created by the Rome Statute to provide support to victims in the form of reparations and material support such as rehabilitation. It reflects the international consensus that justice for victims of the gravest crimes cannot be achieved without their full participation in the ICC judiciary process.
The fund advocates and assists the most vulnerable victims of crimes within the ICC jurisdiction. TFV works for victims by mobilising people, funding opportunities for the benefit of victims, and implementing court-ordered reparations awards. The TFV listens to victims of genocide, crimes against humanity, and war crimes, and amplifies their voices in the international arena. It works with survivors and their communities in designing interventions which are effective and locally relevant.
