Kenyan lawyer Paul Gicheru surprised everyone when he surrendered himself to the authorities of the Netherlands on November 2, 2020.
When he was handed over to the International Criminal Court (ICC) the following day and proceedings started to charge him with the interference of witnesses, as had been outlined in his warrant of arrest outstanding since 2015, hopes were raised among victims and human rights defenders that the justice that had been denied with the premature ending of the Kenya cases would now find a voice with the trial of Gicheru.
This opened up the potential for a renewed focus on the alleged crimes that brought the ICC to Kenya’s doorstep.
However, once again, these hopes were dashed after the ICC terminated the proceedings following Gicheru’s death in Nairobi on Monday, September 26, 2022. The case was awaiting judgment after both the prosecution and the defence presented their final statements at the ICC on June 27, 2022.
The Kenya cases at the ICC seem to have now hit a dead end. Does this rule out any hope of justice for the Kenyans who suffered during one of the country’s darkest hours?
It is now almost a decade-and-a-half since post-election violence (PEV) rocked Kenya, leading to the death of more than 1,000 people and the displacement of hundreds of thousands of others, yet no perpetrator has been convicted, and the question of reparations still hangs in the balance. The Kenya government’s continued failure to properly investigate crimes committed during that period devastates victims’ lives and livelihoods. Efforts by the Kenyan civil society to push the agenda for justice for the victims have failed.
According to a report by Amnesty International in June 2014 titled Crying for justice: Victims’ perspectives on justice for the post-election violence in Kenya, many of the displaced have yet to be resettled or compensated, many of the injured or the families of those killed have yet to receive reparation to help rebuild their shattered lives, and most of the perpetrators have yet to face justice.
“Resettlement programmes have only targeted some communities whilst neglecting others,” the report said, adding that many rapes went unreported. There are estimated to be as many as 40,000 incidents of sexual and gender-based violence linked to the PEV that took place in the first few months of 2008, far higher than the 900 cases reported to the Waki Commission, which investigated the violence.
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In addition, the police have conducted some investigations into the PEV, but few of these have resulted in prosecutions, and most were for minor offences.
The failure of the Office of the Director of Public Prosecutions to investigate these crimes is reflected in more than 4,000 files related to the PEV, which state that there is insufficient evidence to proceed with the cases.
Kenya ratified the Rome Statute, the treaty that created the court, in March 2005. It implemented the Rome Statute by entry into force of the International Crimes Act 2008 in January 2009. The ICC, therefore, may exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Kenya or by its nationals from June 2005 onwards. This step represented a step forward in addressing Kenya’s political and criminal impunity culture.
However, the journey of the Kenya cases at the ICC never had government support right from the beginning, and there has been a very public backlash against the court throughout the years. At the beginning of the process, after the suspects’ names were first revealed, many Kenyan politicians changed the narrative, instead accusing the ICC of an anti-African bias and dismissing it as a colonial institution.
The suspects and their agents moulded themselves into victims of “Western and imperialist” actors. The plight and voice of the real victims of the violence were completely drowned out.
This was followed by an intensive campaign to scare off witnesses, with several of them being killed and others being disappeared. The collapse of the cases has also been followed by reports of intimidation leading to witness withdrawals, refusal to testify, and recanting of their testimony. Former ICC Fatou Bensouda, who took over the cases from Luis Moreno Ocampo, complained about external factors such as insufficient cooperation from Kenya, witness tampering, and interference that contributed to the failure of the cases.
The government’s political initiatives and supported efforts by the African Union (AU) to undermine the work of the ICC, including calling on the United Nations Security Council (UNSC) to terminate or defer the Kenyan cases and promoting non-cooperation as well as proposing amendments to seek to undermine the effectiveness of the court have failed the victim’s pursuit for justice.
When Karim Khan took over as the next ICC Prosecutor in June 2021, the Kenyan civil society was concerned due to his involvement in the Kenyan cases as lead defence counsel of William Ruto, who has since been elected president in Kenya, in the crimes against humanity case. Khan joined the bandwagon of characterising the ICC as a Western entity that was being used to effect regime change in Kenya.
“They thought that Kenyans were so weak that they would say that choices have consequences, and they would get a different set of leaders that were amenable to outside interests. Kenyans were not naïve. They made the right decision and the court process, fortunately, after a lot of work by the defence teams, showed by the independent review by experienced judges…. that the evidence was distinguished by gaping holes, contradictions, fallacies and lies,” Khan said in one of his interviews published in Kenyan media.
The Kenyan government has in recent years sought to build an image of a major player in the international sphere. It has supported calls for the expansion of the UNSC and rallied efforts in prioritising regional peace and security, countering terrorism and violent extremism, and peace support operations, climate and security as critical contributions to collective efforts to build a safer, more prosperous and peaceful world.
However, the shadow of the PEV and the plight of the victims will always overshadow such efforts, underlining its failure as a nation to end impunity and hold the perpetrators to account.
The plight of the victims still waiting for justice will always remind Kenya of its failure to uphold the international law of bearing the responsibility for protecting the rights of all individuals within its territory. Some 14 years down the line and the plight of the victims of the PEV has never come to the fore of the government’s agenda. The question of who bears responsibility for the violence remains unanswered.
If this is the end of the cases, then it not only marks a historic injustice but is also a reminder to the ICC of its failure to fulfil its mandate to bring to full trial the people responsible for the 2007/2008 post-election violence in Kenya.