By Susan Kendi
of the violence that followed the disputed December 2007 presidential election
in Kenya are back in the news. A lot of heat has been generated in Kenya about
what to do with their cases.
in Kenya about those victims is an opportunity to take a fresh look at what the
International Criminal Court’s Trust Fund for Victims has done for them.
interest in the victims of violence that occurred between December 2007 and
February 2008 began when Kenya’s top detective announced
on November 23 that investigators had begun looking into new threats those victims
said they had received in the recent past.
Criminal Investigations George Kinoti said at a news conference on November 23
that investigators were taking statements from scores of victims of the
violence that followed the disputed December 2007 presidential election. Kinoti
said some of those victims were present at the news conference he held.
the Directorate of Criminal Investigations (DCI) took this action after the
victims reported they had received threats in the recent past. Two days after
Kinoti’s news conference, President Uhuru Kenyatta strongly opposed any efforts
to “dig up graves that had been forgotten”, a statement that was interpreted
as saying no investigation should be opened into the violence that followed the
December 2007 presidential election.
not name Kinoti in
his speech that was a mix of Kiswahili and English. He did not even
directly refer to what is commonly referred to the post-election violence of
December 2007. But because he spoke on Wednesday, November 25 it was taken that
he was criticizing Kinoti’s announcement two days earlier.
At the height
of the violence that occurred between December 2007 and February 2008 more than
600,000 people were displaced from their homes in Kenya. A government-appointed
commission that investigated the violence said 1,133 people were killed during
To date, the
Trust Fund for Victims (TFV) has not done anything for any of these victims.
The most that has happened is talk of the TFV rolling out an assistance
programme in Kenya.
To that end,
the TFV sent a fact-finding mission to Kenya last year. This mission was scheduled
to submit an assessment report to the TFV board in December last year. What
that report said or what the board decided after considering that report has
not been made public to date.
Fund has two major roles. One role is to implement court-ordered reparations
awards following the final conviction of an accused. The other role is to
provide assistance to victims. This second role is executed on a voluntary
basis. A TFV assistance programme is based on voluntary contributions from
member states of the ICC.
last year, the then TFV Chairman, Felipe Michelini, explained to JFJ that the
Trust Fund had not initiated an assistance programme in Kenya because insecurity
in Kenya had made it hard to
conduct an assessment and there were difficulties in implementing such programmes.
“If you want me to admit that of course, we should have stepped
in faster that is true…The worst [thing] is to step in if you have no idea of
what you are going to do because expectations are so high you know. So, in that
sense we can assure that with a report, the board will have a decision and as
soon as we have the decision, we will have serious steps like the assessment
and calling for invitations to NGOs with local partners to implement those
programmes with an amount of money that will be in the bank,” said Michelini. Later,
in April this year, he died and was replaced by Mama Koité Doumbia as chair.
There had been
expectations that once the ICC got involved in Kenya the TFV would roll out an
assistance programme. The Office of the Prosecutor (OTP) formally began
investigations in March 2010 into the post-election violence of December 2007
and February 2008. This was after a pre-trial chamber authorised the OTP to do
so. The OTP announced its list of six suspects in December 2010 triggering
pre-trial proceedings that eventually led to trial proceedings. The Kenya cases
eventually collapsed in December 2015 and April 2016.
While the cases were
active different civil society organisations questioned why the TFV had not
began any assistance programmes in Kenya.
After the collapse of the Kenya cases, civil society
experts and Ulster University’s Transitional Justice Institute came together to
form what became called the Expert Group and developed The Nairobi Principles on Accountability. These
principles are based on the experiences from the Kenya cases at the ICC. The
Expert Group released the principles in January 2019.
In their justifications for
the principles, the Expert Group regretted that the TFV had not meet the
expectations of the victims in Kenya.
“To date, the Trust Fund for
Victims has continued to raise expectations without offering any assistance to
Kenyan victims. In the absence of clear criteria for deciding Trust Fund for
Victims interventions, the Expert Group proposes that it becomes mandatory for
the Trust Fund for Victims to conduct assessments in every situation country,
in order to meaningfully determine victims’ needs for assistance, and to make
the TFV’s decisions to intervene in certain situations and not in others more
objective,” said the Expert Group.