By Joyce J Wangui
Victims of crimes committed during the post-election violence in Kenya are frustrated by their continued exclusion from any assistance offered by the International Criminal Court.
Scott Bartell, the regional programme officer for the Trust Fund for Victims ( TFV) based in Uganda, says the assistance programme is unlikely to extend to Kenya or any other ICC situation countries before 2017.
Slow processes by the ICC Trust Fund for Victims has discouraged victims of the violence that occurred in Kenya over eight years ago. Over 1,000 people were killed, thousands others raped and injured, and in excess of 600,000 displaced in violence that erupted after the presidential results of 2007 elections were announced.
‘FORGOTTEN FACES 2016’
|Kenya victims’ lawyer at the ICC
||Fergal Gaynor, who represented over 20,000 victims in the ICC case against Uhuru Kenyatta, says: “The TFV has yet to provide assistance to even one victim in Kenya.” Victims of crimes for which President Uhuru Kenyatta, former Head of Public Service Francis Muthaura and former police boss Hussein Ali were charged in 2011 will not receive any compensation from the International Criminal Court. Charges against Ali were not confirmed while those against Muthaura and President Uhuru were withdrawn because critical witnesses withdrew from testifying. Without a conviction – resulting from a trial process in which someone is declared guilty – the court cannot order the confiscation of property or the payment of compensation by the ICC’s Trust Fund for Victims.
|Pieter de Baan,Trust Fund for Victims executive director
||Pieter De Baan, the TFV executive director says the Trust Fund is not permitted to award any reparations or compensation to victims in Kenya following the withdrawal of the case. That only leaves the option of assistance. TFV provides assistance using voluntary contribution from donors to cover physical, psychological and material support to victims and their families. Bartell adds that no contributions have been made to support Kenyan victims. Voluntary contributions from Rome Statute member states, donor governments, and foundations can be earmarked as support for specific programmes – such as assistance for survivors of sexual and gender based violence or former child soldier initiatives – but not for a particular situation country. Gaynor says TFV’s inaction in Kenya is “obviously deeply disappointing” to many victims, especially those who were first informed of its existence and mandate by ICC staff in 2010. His team has repeatedly communicated the urgent need for assistance to post-election violence victims in Kenya under the TFV’s general assistance mandate. With judges expected to decide whether William Ruto and Joshua arap Sang have a case to answer or not, the issue of compensation is uncertain. Wilfred Nderitu, the Common Legal Representative for Victims in the case, says: “There would be no reparations if there is no case to answer.” Reparations can only be ordered when a person is convicted, and the only form of assistance from the Trust Fund for Victims would be minimal and perhaps ‘not guaranteed’. Although Kenya has enacted the International Crimes Act, 2009, which domesticates the Rome Statute, there is no reparations framework for victims.
Luke Moffet, a law lecturer at Queen’s University in Belfast, Northern Ireland, says the TVF’s assistance mandate has seen it provide millions of Euro in support to aid agencies in Uganda and the Democratic Republic of Congo. “But it is not reparations, more like development or charity,” he adds.
Frustrations by victims
While acknowledging the frustration with the ICC in failing to deliver reparations if there is no conviction, Moffet says that victims and civil society should direct their attention to the Kenyan government, which is primarily responsible for delivering justice and reparations to victims.
“The ICC is not responsible for delivering justice to victims. It is up to states to provide remedies and reparations to victims, with the ICC as a last resort in those few cases that come before it dealing with the most serious perpetrators that a country is unable or unwilling to prosecute.”
Moffet, author of ,Justice for Victims before the International Criminal Court, says the Trust Fund is not obliged to provide assistance to all victims, and is still waiting to roll out its programme in the Central African Republic (CAR) because of ongoing violence. “In my view reparations at the ICC will always be limited if perpetrators are convicted. This is why the Thomas Lubanga (of the Democratic Republic of the Congo), case is controversial as it focused on child soldiers and excluded sexual violence charges.” Limited resources pose a significant problem within the ICC and the TFV.
Trust Fund for Victims budgetary constrains
The current TVF budget is 12.8 million Euro (Sh1.3 billion). TFV pays out €12.8 million (Sh128 million) and US$ 61,300 (Sh6.13 million). Around €1 million (Sh100 million) is budgeted for disbursement to current projects in Uganda and DRC. An allocation of €600,000 has been maintained for assistance mandate activities in CAR. The TFV’s reparations reserve is maintained at €4.8 million (Sh480 million). From this reserve, the TFV Board of Directors allocated €1 million (Sh100 million) to implement reparations in the Lubanga case. In addition, €600,000 (Sh60 million) is allocated to conducting situational assessments in new situations. Another €100,000 (Sh10 million) has been set aside for capacity building of TFV implementing partners and €200,000 (Sh20 million) for the design and establishment of a management information system for the design and establishment of a management information system. Further budget allocation for projects in DRC and Uganda 2016-2017 will be decided during the Annual Board Meeting in March 2016.
Last year, President Uhuru pledged to establish a Sh10 billion Reparative Justice Fund that would provide assistance to victims of human rights violations, but it has not been operationalised because it is not anchored in law.