Victims of the post-election violence have asked the International Criminal Court to order the Kenyan government to compensate them for all the harms they suffered and for the Trust Fund for Victims to assist them.
In a June 14 public filing at the ICC, two months after a majority of judges decided to end the case against Deputy President William Ruto and Joshua arap Sang, the Common Legal Representative for Victims has asked the court to find that the Government of Kenya is obliged to provide adequate, effective and prompt reparation for various forms of harm suffered because of its acts and omissions.
Seizing on the decision of Presiding Judge Chile Eboe Osuji that the State had “meddled itself into the jurisdiction of the ICC”, lawyer Wilfred Nderitu asks that Kenya be required to make “adequate, effective and prompt reparation to all the victims of the post-election violence”. Nderitu points out that although Kenya, as a State Party, is entitled to participate in the proceedings with leave of the Chamber, it had not made any filing to set the record straight on the two issues of witness interference and political meddling.
“In the absence of any appeal by the accused persons or other process by the State challenging the finding of the Presiding Judge, it is submitted that an adverse inference can and ought to be attributed to the State.”
He cites the pledge to assist victims by President Uhuru Kenyatta, whose own crimes against humanity charges were withdrawn in 2014, and adds that the past failure of the State to protect all persons on its soil extended to the government’s unwillingness to conduct meaningful investigations into the violence with a view to punishing the perpetrators.
More importantly, the subsequent failure of the State to adequately ensure that victims interests and expectations for justice were protected at all times through active deterrence of conduct that could — and eventually did — interfere with the course of justice squarely lays the obligation to provide reparations on the government.
“Persons and civil society organisations that were involved in the ICC process have felt a sense of victimisation, or an outright feeling of non-protection, while the National Cohesion and Integration Commission and other governmental agencies or departments charged with the facilitation of mechanisms for monitoring conflict resolution and preventive intervention have in most cases been reactionary, and have had little impact.”
There has generally been a lack of genuine investigations and prosecutions of those responsible for the post-election violence.
Attempts for the establishment of mechanisms such as the creation of an effective International Crimes Division within the judiciary to address such cases, have stalled.
“Now that the pressure relating to the two case has somewhat dissipated, it is doubtful whether there is any political will to jumpstart the proposed International Crimes Division, which was intended to try middle level perpetrators,” the lawyer says in court papers.
Despite the government setting aside Sh6 billion for the resettlement of internally displaced persons in this year’s budget; and Sh2.2 billion in the 2015/2016 budget, victims continue to live in abject poverty. Nderitu says no known legal representatives of victims or community-based and non-governmental organisations dealing with victims and other stakeholders have been consulted in with a view to assisting in the coordination of assistance to victims.
“Many victims require psychosocial support, but the main focus has been on resettling victims — and then, only those who are living in camps — to the exclusion of addressing other needs that they might have,” the filing says.
The Humanitarian Fund established under the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act
of 2012 is administered by the government has not been transparent and accountable.Victims have expressed concerns that the Fund has been shrouded in corruption because it is largely administered by government officials rather than by a broad-based committee.
Additionally, the rehabilitation of victims – as opposed to the rehabilitation of destroyed community utilities and institutions – has not been expressly provided for in the law. “Little is known about the capitalisation of the Fund beyond the fact that the initial capital … was set at Sh1 billion,” the filing says.
Victims have also asked the court to direct the Trust Fund for Victims to urgently look into ways of initiating and providing assistance to all victims of the post-election violence in accordance with its mandate.
“The time is ripe for the Trust Fund for Victims to implement its assistance mandate in relation to victims of the 2007/2008 post-election violence in Kenya … particularly in connection with victims of sexual and gender-based violence and others with severe scarring due to burns sustained in the violence, especially in Eldoret and Naivasha,” Nderitu says.
He adds that victims continue to suffer immense trauma, and the TFV’s assistance would assist other victims of the violence and their families with psychological, physical and material support to enable them rebuild their lives and live in dignity — and where possible, reintegrate into the communities in which they lived before the violence.
“The prevailing political situation in the country and the long passage of time — eight and a half years — since the occurrence of the violence are two factors that make assistance and reparations for victims merit urgent consideration,” the lawyer says.
He stresses that the need for reconciliation and reintegration is underscored by the rising inter-ethnic tensions, and this makes the TFV’s intervention rather urgent.
“There is need to send out a public and general alert on worsening inter-ethnic relations and political tensions in Kenya ahead of General Election scheduled for August 2017,” Nderitu says, adding that there was a real likelihood that victims of the 2007/2008 and of previous episodes of ethnic violence could find themselves victimised and re-traumatised.
“Unless checked, the current situation could also result in new victims. This filing is, therefore, also an SOS.” Victims have additionally asked the court to invite further submissions from the parties and participants, including the Government of Kenya and the Trust Fund for Victims, or give further directions on the appropriate types and modalities of providing reparation or assistance in lieu of reparation to the victims.
Read more on Judge Osuji’s view on reparation for Kenyan victims.