“If we are true to the promise that every life matters, we need to find a way to grip and to tackle and to be relevant to people that are voiceless, that are invisible, and that very often have been marginalized for a long time,” these were the words of the International Criminal Court (ICC) prosecutor, Karim Khan during the 22nd session of the Assembly of States Parties in New York.
But how does the ICC live up to this promise, especially in the case of Kenya, where thousands of victims of the 2007-2008 post-election violence were still holding hopes for justice and accountability?
Recently, victims of the human rights violations committed during the violence were dealt a blow by the ICC’s decision to close investigations into the Kenyan situation.
“After assessing all the information available to me at this time, I have decided to conclude the investigation phase in the situation in Kenya. I have reached this decision after considering the specific facts and circumstances of this situation,” said Deputy Prosecutor Nazhat Shameem Khan in a statement on November 27, 2023.
Although the momentous decision may have come as a relief to former key suspects in the case, including Kenyan President William Ruto and his predecessor, Uhuru Kenyatta, it has elicited swift and furious reactions from victims and other stakeholders who have raised serious questions about the legitimacy of the ICC and its competence to deliver justice and accountability for human rights violations.
Jacqueline Mutere, a survivor of sexual violence from the post-election violence, who co-founded Grace Agenda, a foundation dedicated to assisting and counselling rape survivors, says the ICC decision was deeply disappointing and that the court should revisit its mandate.
“The ICC represented accountability where local mechanisms could not work. The decision is a mockery of the survivors and the process – and it is literally dancing on the graves of lost loved ones. Why wait until now? What has changed? Was this a cold case being revived for an opportune moment? What then is justice? This is pure impunity!” Ms. Mutere said.
She added that if a global mechanism expected to be the last resort for victims can fail so dismally in its mandate, then there is no hope for survivors of sexual violence.
“Sadly, and unsurprisingly, politics overrides justice. But this also tells a story, the reality of pursuing justice on an international stage. Perhaps we should have started locally then the African Commission on Human and Peoples’ Rights. Maybe we could have gotten justice,” she said.
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Wilfred Nderitu, a former legal representative of the victims in the trial of Ruto and Joshua Arap Sang – one of the suspects in the post-election violence case – notes that although disappointing, the decision by the Office of the Prosecutor (OTP) to close the investigations was a practical thing to do.
“It would be unimaginable that the investigation process could get any easier. After the changes in the political leadership, I don’t think it’s realistic to expect any meaningful investigation to be carried out,” he said, adding that although there was no direct withdrawal of his mandate, for seven years, there had not been any ongoing work in connection with the victims.
Nderitu also pointed out that there were many gaps in the level of investigations carried out and the integrity of the process.
“There were lots of issues that came out in 2016. The ICC ruled that there was a troubling incidence of witness interference and intolerable political meddling in the case. If that was the court’s conclusion then, I doubt that the ICC today, whether from the standpoint of the judges or the prosecutor, could achieve much with the investigations. The risk of witness intimidation and political meddling would probably be higher than it was before,” he said.
Dr Owiso Owiso, an international lawyer and scholar, said that the victims and survivors have a legitimate reason to feel let down by the ICC, but the decision was not surprising and was, indeed, “long overdue”.
“The Kenya situation significantly tested the resilience and legitimacy of the ICC. Many things went wrong in the OTP’s investigation and prosecution of the cases arising from the Kenya situation, and these have been discussed and debated exhaustively over the years. There is certainly enough blame to go around. After the inglorious collapse of all the cases arising from the Kenyan situation, the OTP was understandably eager to close that chapter,” he said.
He added that in any case, it was very unlikely that the circumstances in Kenya would drastically change in such a manner as to warrant the re-opening of any of the cases or the institution of new ones.
“When it is very unlikely that any new substantial evidence would come to light, it is prudent and pragmatic to redirect resources to other deserving situations.”
The Kenya Human Rights Commission (KHRC) was concerned that the conclusion of the investigation at this stage leaves the victims in a state of limbo, with no clear path to closure or reparation.
“The decision is extremely disappointing and sets a bad precedent. It places a serious indictment on the court’s mandate to hold the perpetrators of war crimes and crimes against humanity to account. During the 2007/2008 post-election violence, 1,200 lives were lost and many victims are yet to receive justice… the ICC case was their last glimmer of hope,” said Martin Mavenjina, a constitutional and human rights lawyer at the KHRC.
After the post-election violence, which also displaced hundreds of thousands of people, the ICC opened an investigation into the Kenya situation in 2010.
Luis Moreno Ocampo, the ICC Prosecutor at the time, initially summoned six suspects, including Ruto and Kenyatta, who were accused of orchestrating attacks against their political opponents.
The others were former police chief Mohammed Hussein Ali, then industrialisation Minister Henry Kiprono Kosgey, radio executive Joshua Arap Sang, and Francis Muthaura, a former civil service chief.
The ICC’s latest decision ends a 13-year-old process marred by legal challenges, political interference, and witness intimidation that plagued the court’s efforts to hold accountable those it counted most responsible for the crimes committed during the Kenyan crisis.
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Right from the start, the ICC investigations were hampered by a lack of political will and state failure to cooperate. The state refused or failed to honour requests for records from the prosecution team in the case against Kenyatta, who would subsequently be elected the president of the republic in 2013. Further, incidents of witness tampering were recorded and several witnesses chose to withdraw or recant their testimony.
Other witnesses disappeared or were found murdered in unexplained circumstances. This systematic deterioration of evidence forced Fatou Bensouda, who had inherited the cases from Ocampo, to withdraw the charges against Muthaura and Kenyatta. The Pre-Trial Chamber later terminated the charges against Ruto and Sang, citing similar reasons.
The OTP initiated an investigation into offences under Article 70 of the Rome Statute, leading to the issuing of arrest warrants against Walter Barasa, Paul Gicheru, and Philip Kipkoech. The proceedings against Gicheru were terminated after his death was officially confirmed. Barasa and Bett remain at large. Little is known about the latter. In fact, he has largely been missing in the public discourse.
“The office maintains its capacity to act on information relating to retaliation against witnesses. In this regard, the cases against Mr Barasa and Mr Bett for offences against the administration of justice remain before the court,” said Khan in her statement.
Before becoming the current ICC Prosecutor, Karim Khan represented Muthaura and Ruto in 2011 in the Kenya cases. He recused himself from the Kenyan matters when he took up his current position at the court in 2021. However, this has not ended speculation about the nature of his connection with his former clients and how this could affect his handling of the cases.
In August 2023, Khan visited Kenya to receive an honorary degree from Mount Kenya University. This raised concerns among the opposition leaders, who questioned his impartiality given his perceived closeness to the Kenyan government, now headed by Ruto, his former client. The leaders expressed concerns about the court’s credibility, prompting the OTP’s public information unit to clarify that the Prosecutor was in Kenya in a private capacity.
The closure of the ICC investigations in Kenya barely four months later has exacerbated these speculations. Many Kenyans took to X (formerly Twitter) to express their thoughts.
Despite the victims’ diminished trust in the ICC to get them justice, Nderitu still believes it can play a role in helping the victims chart the next steps in their bid for justice.
“The ICC may not be perfect, but it still is a viable option for victims to get justice. However, ongoing reforms, particularly relating to the geopolitical dynamics, and improvements in transparency and efficiency, are necessary to enhance its credibility. Criticism should be acknowledged and efforts made to address valid concerns. Only then can the ICC maintain its effectiveness,” said Nderitu.
The KHRC said the ICC should provide the victims with information and assistance on alternative options for seeking justice, such as domestic or regional mechanisms, or civil society initiatives.
According to Dr Owiso, the Kenyan situation was an embarrassing and unfortunate example of how not to conduct investigations and prosecutions. If the ICC is to be a credible and viable international justice actor, then it ought to learn lessons from the situation.
He noted that the failures of the ICC should not be an excuse for Kenya to let down its people.
“It is now upon the government of Kenya to ensure at least some modicum of justice for the victims and survivors of one of Kenya’s darkest chapters. The 2013 report of the Truth, Justice and Reconciliation Commission (TJRC) which has, unfortunately, been gathering dust for a decade now, is a good place to start as it offers multiple recommendations on how domestic accountability can be explored.”