By Susan Kendi
Five long years passed between the time that the International Criminal Court(ICC) Trust Fund for Victims(TVF) announced their intention to send a fact-finding mission to Kenya and the trip occurring, making many worry about whether those affected would get recompense for harm endured in the 2007/8 post-election violence(PEV).
The visit comes three years after the collapse of cases against four Kenyans at the ICC. Uhuru Kenyatta and William Ruto were accused of crimes against humanity during the violence. The cases also involved Francis Muthaura, Mohammed Hussein Ali, Joseph Arap Sang and Henry Kosgey.The judges in the cases declined to confirm charges against Hussein Ali and Henry Kosgey.
In their visit TVF met with civil society organisations and government agencies in the criminal justice sector. During the visit, the fund gathered information on the type of victims involved, areas where PEV occurred, the status of state reparations and the willingness of the government to compensate victims of the PEV and also sought advice one the best way to compensate the victims.
The fund further clarified that the visit was just an assessment and not assurance that they would compensate victims.
The findings will be presented to the TVF board of directors in December for deliberation. An assessment report will then be forwarded to the Board of directors to decide whether the institution will establish an assistance mandate program in Kenya to provide physical and psychological rehabilitation and material support projects to the victims and their families.
The Trust Fund for victims provides assistance in relation to the voluntary contributions from states and non-state entities.
Anushka Sehmi, a lawyer who worked for ICC’s victim Participation and Reparations unit, expressed disappointment in the delayed response by the fund.
“It is a shame that they [Trust Fund for Victims] took so long,” said Anushka. She added that if possible, assistance programs and projects should be established before reparations are done.
Lawyer Anushka is not the only disappointed party. An expert group on International law, analysed the Kenyan situation and drafted The Nairobi Principles on Accountability addressing what went wrong in the case, lessons learnt and made recommendations to the Court. The report additionally expressed distress in the Court’s Trust Fund for victims.
“ICC outreach was insufficient in the Kenyan cases…Many victims in Kenya never received compensation nor sufficient assistance; stressing that the ICC’s Trust Fund for Victims despite many promises to carry out a needs assessment never provided any assistance to victims in Kenya,” the report said.” Outreach must be re-conceptualised as a core part of the ICC’s operations, including forming part of the core budget of the Court and be seen as a priority area for all relevant organs of the ICC.”
In the past, the fifteen-year-old fund has been accused of playing favourites. In an interview by Nzau Musau, published on the Standard Newspaper dated October 26, 2014, a group of civil society organisations expressed dissatisfaction with the Trust Fund for victims, citing no progress irrespective of the letter that they addressed to the Trust Fund’s director, Pieter De Baan.
“They have elected to discriminate against the Kenyan victims. Their constant excuse is that it remains unsafe to operate in Kenya, yet they are a neutral party. Besides, other court organs operate here,” a member of the group said.
The Kenyan government has also failed in its obligation to support the victims of 2007/2008 PEV under the international law. It has been three years since Kenyan government promised a Sh10 billion restorative fund to compensate victims of the 2007/2008 post-election violence and historical injustices.
In the 2018 Auditor General’s report over 2.7 billion shillings were paid to non-existent internally displaced persons without national identity card and to others with duplicate names. The real victims are yet to receive compensation.
In 2017, President Uhuru Kenyatta issued payments of Ksh 828 million in Kisii and Nyamira Counties to integrated IDPs displaced during post-election violence in 2007/2008.
In 2017 the Trust Fund Board provided $1 million as reparations for the benefit of 297 victims, following a Court order after Germain Katanga’s conviction. They also welcomed a “voluntary contribution” of 200,000 Euros by the government of the Netherlands. The reparations were divided into individual and collective symbolic compensation. Each victim was given USD 250, while collective reparations included housing and education assistance, income generating activities and psychological rehabilitation.
Over 1,100 people died and 650,000 displaced during the 2007/2008 post-election violence in Kenya.
The Trust Fund for victims is currently operating in the Democratic Republic of Congo, Central African Republic and Northern Uganda.
