Abstract
The Commission of Inquiry into the Post-Election Violence (Waki Commission) placed the names of suspects into a sealed envelope which was handed to Kofi Annan. The Waki Commission recommended that a special tribunal be established to try the suspects and, should this not occur within the deadline specified, Annan was under instructions to deliver the envelope to the ICC Prosecutor. The government failed to establish a special tribunal, even after being granted an extension to the deadline, and so on 9 July 2009 Annan delivered the sealed envelope and six boxes of supporting materials to the Prosecutor. The Prosecutor opened the envelope, examined its contents and resealed it, before encouraging the government to try suspects locally and promising that there would be no impunity for the crimes that had been committed. Once again the government failed to uphold its commitment to establish a special tribunal, prompting the Prosecutor to use his proprio motu powers for the first time in the ICC’s history. This culminated in the naming of the Ocampo Six, which included leaders who would go on to become President and Vice President—Uhuru Kenyatta and William Ruto.
This chapter provides a chronological overview of the OTP’s strategy of positive complementarity in Kenya. This included meetings in Nairobi and The Hague, threats of international prosecutions, the entering into of a complementarity contract and the outlining of a division of labour. It also provides a summary of the government’s responses during this period, which has included three attempts to establish the special tribunal, promises to deal with the post-election violence suspects through the ordinary local courts, the truth commission, the East African Court of Justice and the African Court of Justice and Human Rights. Finally, it outlines the government’s attempts to prevent and delay the progress of the trials in The Hague, including a parliamentary motion to withdraw from the Rome Statute, an application to the Security Council to have the trials deferred for 12 months and an application to the ICC to have the trials referred back to Kenya.
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Notes
- 1.
Including the Law Society of Kenya (‘LSK’), the International Centre for Policy and Conflict (‘ICPC’), the KNCHR, the KHRC and ICJ-K.
- 2.
Kenya Human Rights Institute, Clarifying Human Rights Violations in the Kenyan Post-Election Crisis (Kenya Human Rights Institute 2008).
- 3.
International Criminal Court Office of the Prosecutor, ‘OTP Statement in Relation to Events in Kenya’, 5 February 2008 (‘OTP February 2008 Statement’).
- 4.
International Criminal Court, Situation in the Republic of Kenya, Request for authorisation of an investigation pursuant to Article 15, ICC-01/09, 26 November 2009 (‘OTP Request for Authorisation’).
- 5.
Kenya National Commission on Human Rights, On the brink of the precipice: a human rights account of Kenya’s post-2007 election violence, 15 August 2008 (‘KNCHR Post-Election Violence Report’).
- 6.
Luis Moreno-Ocampo, ‘A positive approach to complementarity: the impact of the Office of the Prosecutor’ Stahn and El Zeidy (2011).
- 7.
African Union Panel of Eminent African Personalities, Press Statement by Kofi Annan, 1 March 2008 (‘Annan March 2008 Statement).
- 8.
African Union, Panel of Eminent African Personalities, Press Statement by Kofi Annan, 23 September 2008 (‘Annan September 2008 Statement’).
- 9.
Final Report from Kenya’s Commission of Inquiry into Post-Election Violence, 15 October 2008 (‘Waki Report’), 305, 346, 472.
- 10.
Interview with Justice Philip Waki (Nairobi, 16 April 2010).
- 11.
Waki Report (see Final Report from Kenya’s Commission of Inquiry into Post-Election Violence, 15 October 2008, 305, 346), 473.
- 12.
African Union Panel of Eminent African Personalities, Address by Kofi Annan delivered during the 29th graduation of the University of Nairobi, 17 October 2008.
- 13.
Republic of Kenya Office of the President, ‘Special Tribunal to be set up’, 17 December 2008.
- 14.
African Union, Panel of Eminent African Personalities, Statement of Kofi Annan on the Implementation of the Report of the Commission of Inquiry on Post-Election Violence (CIPEV) & Independent Review Commission (IREC), 19 December 2008.
- 15.
Oliver Mathenge and Sadiki Sudhir, ‘Lawyers fault proposed tribunal on Waki’, Daily Nation, 3 December 2008.
- 16.
International Criminal Court Office of the Prosecutor, ‘ICC Prosecutor Reaffirms that the Situation in Kenya is Monitored by his Office’, 11 February 2009 (‘OTP February 2009 Statement’).
- 17.
Lucas Barasa, ‘Annan roots for local tribunal’, Daily Nation, 17 February 2009.
- 18.
African Union, Panel of Eminent African Personalities, Note on handover of CIPEV materials to the Prosecutor of the ICC, 29 July 2009 (‘Annan Sealed Envelope Statement’).
- 19.
OTP Request for Authorisation (see Footnote 4); Bernard Namunane, ‘The Hague vows to act swiftly’, Daily Nation, 31 March 2009.
- 20.
Philip Alston, Mission to Kenya 16–25 February 2009 (United Nations Special Rapporteur on Extrajudicial Killings, Arbitrary or Summary Executions, 2009) (‘Alston Report’).
- 21.
Government of the Republic of Kenya, Response to the Report of the Special Rapporteur on Extrajudicial. Arbitrary or Summary Executions, Professor Philip Alston, on his Mission to Kenya from 16 to 25 February, 2009 (‘Government Response to Alston Report’).
- 22.
Emeka-Mayaka Gekara, ‘Ocampo to step in if Kenya does shoddy job’, Daily Nation, 19 June 2009.
- 23.
International Criminal Court Office of the Prosecutor, ‘ICC Prosecutor Receives Materials on Post-Election Violence in Kenya’, 16 July 2009 (‘OTP First Statement on the Sealed Envelope’).
- 24.
International Criminal Court Office of the Prosecutor, ‘Agreed minutes of the meeting between Prosecutor Moreno-Ocampo and the delegation of the Kenyan Government’, 3 July 2009 (‘OTP Complementarity Contract Statement’).
- 25.
Annan Sealed Envelope Statement (see Footnote 19).
- 26.
Ibid.
- 27.
International Criminal Court Office of the Prosecutor, ‘Waki Commission List of Names in the Hands of ICC Prosecutor’, 16 July 2009 (‘OTP Second Statement on the Sealed Envelope’).
- 28.
Bernard Namunane and Lucas Barasa, ‘Cabinet rejects draft laws on local tribunal’, Daily Nation, 14 July 2009.
- 29.
Republic of Kenya Office of the President, ‘Cabinet Decides on TJRC’, 30 July 2009.
- 30.
Ibid.
- 31.
Ibid.
- 32.
International Centre for Policy and Conflict and others, ‘Open Letter to President Mwai Kibaki and Prime Minister Raila Odinga’, 5 August 2009 (‘Civil Society TJRC Open Letter’).
- 33.
Civil Society TJRC Open Letter (see Footnote 33).
- 34.
‘Kenyan Cabinet in the eye of a storm’, Daily Nation, 1 August 2009.
- 35.
‘Truth commission “unlikely to try suspects”’, Daily Nation, 10 August 2009.
- 36.
Peter Leftie, ‘Ocampo wants trials split in three’, Daily Nation, 17 September 2009; John Ngirachu, ‘Wetangula allays ICC prosecution fears’, Daily Nation, 29 September 2009.
- 37.
‘EU wants Waki, Kriegler reports implemented’, Standard, 19 November 2008; Bernard Namunane, ‘EU piles pressure on Kenya over poll trials’, Daily Nation, 27 July 2009; Oliver Mathenge, ‘Kenya, EU mulls withholding TJRC funds’, Daily Nation, 7 August 2009; Oliver Mathenge, ‘Resign, NCCK tells Cabinet over post-poll chaos trials’, Daily Nation, 31 July 2009.
- 38.
Dave Opiyo, ‘US warns Kenya on reforms’, Daily Nation, 15 August 2009.
- 39.
David Ohito, ‘Travel ban: Obama jolts Cabinet ministers’, Standard, 25 September 2009.
- 40.
Peter Leftie, ‘Violence suspects may face UK travel ban’, Daily Nation, 4 August 2009.
- 41.
International Criminal Court Office of the Prosecutor, ‘ICC Prosecutor supports three-pronged approach to justice in Kenya’, 30 September 2009 (‘OTP Division of Labour Statement’).
- 42.
Ibid.
- 43.
OTP Request for Authorisation (see Footnote 4).
- 44.
Ibid.
- 45.
International Criminal Court Office of the Prosecutor, ‘Kenya Authorities Committed to Cooperate as ICC Prosecutor Informs them that in December he will Request ICC Judges to Open an Investigation into Post-Election Violence’, 6 November 2009 (‘OTP Proprio Motu Statement’).
- 46.
Hansard, National Assembly, Official Report, 18 November 2009.
- 47.
OTP Request for Authorisation (see Footnote 4).
- 48.
Ibid.
- 49.
Beauttah Omanga and Alex Ndegwa, ‘Debate on Imanyara Bill stalls as MPs stay away’, Daily Nation, 12 November 2009.
- 50.
‘MPs snub Imanyara Bill debate, yet again’, Standard, 19 November 2009.
- 51.
OTP Request for Authorisation (see Footnote 4).
- 52.
Ibid.
- 53.
International Criminal Court, Situation in the Republic of Kenya, Decision Requesting Clarification and Additional Information, ICC-01/09, 18 February 2010.
- 54.
International Criminal Court, Situation in the Republic of Kenya, Prosecutor’s Response to Decision Requesting Clarification and Additional Information, ICC-01/09, 3 March 2010.
- 55.
International Criminal Court Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 (‘PTC Authorisation to Conduct Investigations’). Judge Kaul dissented, finding that there was no evidence of a State or organisational policy to commit an attack on a civilian population. While Judge Kaul accepted that the post-election violence may have been organised and planned in advance, the absence of an ‘organisation’ implementing a policy to attack a civilian population prevented His Excellency from being satisfied that there was a reasonable basis for concluding that crimes against humanity had been committed.
- 56.
David Clarke and Matthew Tostevin, ‘Interview—ICC prosecutor targets up to six Kenyans’, Reuters, 12 May 2010.
- 57.
International Criminal Court Office of the Prosecutor, ‘ICC Prosecutor to visit Kenya to meet victims and listen to all Kenyans’, 4 May 2010.
- 58.
Bernard Namunane and Oliver Mathenge, ‘I’ll nail suspects in 6 months’, Daily Nation, 8 May 2010.
- 59.
International Criminal Court Pre Trial Chamber II, Situation in the Republic of Kenya, Public Redacted Version of Report Concerning Victims’ Representations (ICC-01/09-6-Conf-Exp) and annexes 2 to 10, ICC-01/09, 29 March 2010 (‘PTC Victims Report’).
- 60.
International Criminal Court, ‘ICC distributes 200,000 copies of the booklet Understanding the ICC’, 4 September 2010.
- 61.
International Criminal Court, ‘The ICC launches Outreach Programme radio campaign in Kenya’, 3 December 2010.
- 62.
International Criminal Court, ‘ICC releases episode two of the Kenyan-wide TV series Ask the Court’, 15 April 2011.
- 63.
United Nations General Assembly Human Rights Council, Working Group of the Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, Kenya, A/HRC/15/8, 17 June 2010 (‘Human Rights Council Universal Periodic Review’).
- 64.
‘I think I have a strong case because the Waki Commission is a very good report, it’s full of information and there are other reports; the UN report; different other human rights groups reports. I believe I have a very strong case’ (Kariuki 2009).
‘There is no doubt that I will be able to present a very strong case against at least six key suspects before the ICC judges’ (Omanga 2010). ‘We have great evidence. This includes details of meetings that planned the attacks’. Murithi Mutiga, ‘Ocampo: I have solid evidence against six Kenyan suspects’, Daily Nation, 21 September 2011.
‘The important point is that no-one is immune from Prosecution before the ICC; politicians, businessmen or security officers may all potentially be brought to account in accordance with their criminal responsibility … It happened with Slobodan Milosevic; it happened with Charles Taylor’ (Gekara 2009) (see Footnote 22).
‘I saw in my country President Videla who had a lot of power when he took office and one day we prosecuted him in court … I saw General Pinochet who was arrested when he was in London. I saw President Milosevic who was arrested in his own country. I saw Charles Taylor arrested and in The Hague. We are living in a new world in which power is not allowing you to commit massive crimes’. Michael Onyiego, ‘ICC Prosecutor promises justice for Kenyas’, Voice of America, 13 May 2010.
‘We are investigating massive crimes against humanity faster than ever thought possible’ (Gekara 2009) (see Footnote 22).
‘Everyone is worried about the next election in Kenya in 2012. That is why I understand the importance of speed’. ‘ICC seeking speedy trials’, BBC News, 7 November 2009.
‘We are trying to be as fast as possible. Individuals should face justice in 2010’ (Namunane 2009).
‘It will be very fast. At the end of the year, we will present the cases that I want tried to the judges’ (Namunane and Mathenge 2010) (see Footnote 58).
- 65.
‘The Prosecutor will present in court a limited number of cases, two or three, against those persons considered the most responsible. Only some of the gravest incidents will be presented at trial’ (Kariuki 2009).
‘We cannot prosecute thousands of people at The Hague. Young men raped and killed, but who gave the order? Who paid the money?’ Anthony Kariuki, ‘Ocampo says no suspects in Kenya chaos’, Daily Nation, 8 May 2010.
- 66.
‘We still emphasise the need for a special tribunal and other national proceedings to ensure a holistic approach to criminal responsibility for these crimes’. ‘Justice beckons as Ocampo visits Kenya’, Daily Nation, 6 May 2010.
‘Don’t expect everything from me. I will only prosecute two to six cases and the rest is up to you’.
- 67.
International Criminal Court Office of the Prosecutor, ‘OTP delegation to visit Guinea’, 18 May 2010 (‘OTP Guinea Statement’).
- 68.
Murithi Mutiga, ‘Now Ruto wants Kenya’s principals charged by ICC’, Daily Nation, 6 November 2010.
- 69.
Lucas Barasa, ‘We’ll arrest suspects, Big Two tell Ocampo’, Daily Nation, 1 December 2010.
- 70.
Lucas Barasa, ‘Annan, Ocampo meet Kenya principals’, Daily Nation, 1 December 2010.
- 71.
Bernard Namunane, ‘Your time is up, Ocampo tells chaos suspects’, Daily Nation, 2 December 2010.
- 72.
Situation in the Republic of Kenya, Prosecutor’s Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Public Redacted Version of Document ICC-01/09-30-Conf-Exp, 15 December 2010 (‘OTP Kenya One Application’).
- 73.
Situation in the Republic of Kenya, Prosecutor’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Public Redacted Version of Document ICC-01/09-31-Conf-Exp, 15 December 2010 (‘OTP Kenya Two Application’).
- 74.
International Criminal Court Office of the Prosecutor, ‘ICC Prosecutor to Judges: Kenya crimes resulted from a policy by identifiable leaders’, 3 March 2010.
- 75.
International Criminal Court, Office of the Prosecutor, ‘Kenya’s post election violence: ICC Prosecutor presents case against six individuals for crimes against humanity’, 15 December 2010 (‘OTP Ocampo Six Statement’).
- 76.
Hansard, National Assembly, Official Report, 16 December 2010.
- 77.
Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joseph Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11, 23 January 2012 (‘PTC Confirmation of Charges, Kenya One’); Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’, ICC-01/09-02/11-274, 31 January 2012 (‘PTC Confirmation of Charges, Kenya Two’).
- 78.
Prosecutor v William Samoei Ruto and Joseph Arap Sang, Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision n of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’, ICC-01/09-01/11, 24 May 2012; Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Decision on the appeals of Mr Francis Kirimi Muthaura and Uhuru Muigai Kenyatta against the decision n of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’, ICC-01/09-02/11, 24 May 2012.
- 79.
Office of the President, ‘Statement by His Excellency Hon Mwai Kibaki CGH MP, President and Commander-in-Chief of the Defence Forces of the Republic of Kenya following the decision by the International Criminal Court Pre-Trial Chamber’, 23 January 2012.
- 80.
‘Victims do not have to wait for a conviction before they receive help. The Government of Kenya has a responsibility to help its citizens. And to protect them. The Office is concerned about allegations of attacks against victims of the crimes’. International Criminal Court Office of the Prosecutor, ‘Statement by the Prosecutor of the International Criminal Court on Kenya ruling’, 24 January 2012.
- 81.
Ibid.
- 82.
Nzau Musau, ‘Kenya: Uhuru, Ruto must go to ICC even if elected’, The Star, 27 July 2012.
- 83.
United Nations Human Rights Committee, Concluding observations adopted by the Human Rights Committee at its 105th session, 9–27 July 2012, CCPR/C/KEN/CO/3, 26 July 2012 (‘UN Human Rights Committee Concluding Observations’).
- 84.
International Criminal Court Office of the Prosecutor, ‘Statement by the Prosecutor of the International Criminal Court Mrs. Fatou Bensouda at the press conference at the conclusion of Nairobi segment of ICC Prosecutor’s visit to Kenya, Nairobi’, 25 October 2012 (‘OTP Second Statement on Bensouda’s Visit to Kenya’).
- 85.
International Criminal Court Office of the Prosecutor, ‘Statement by the Prosecutor of the International Criminal Court Mrs. Fatou Bensouda’, press release, 22 October 2012 (‘OTP First Statement on Bensouda’s Visit to Kenya’).
- 86.
Koome Kimonye and Alex Chamwada, ‘Kenyan Gov’t not cooperative, says ICC’, Citizen News, 17 February 2013.
- 87.
Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Decision on the withdrawal of charges against Mr Muthaura, ICC-01/09-02/11, 18 March 2013 (‘Decision to Withdraw Charges Against Muthaura’).
- 88.
Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Decision on the schedule leading up to trial, ICC-01/09-02/11, 9 July 2012.
- 89.
Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Order concerning the state date of trial, ICC-01/09-02/11, 7 March 2013.
- 90.
Prosecutor v Uhuru Muigai Kenyatta, Public redacted version of ‘decision on commencement date of trial’, ICC-01/09-02/11, 20 June 2013.
- 91.
Prosecutor v Uhuru Muigai Kenyatta, Decision adjourning the commencement of trial, ICC-01/09-02/11, 31 October 2013.
- 92.
Prosecutor v Uhuru Muigai Kenyatta, Decision on Prosecution’s application for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11, 31 March 2014.
- 93.
Prosecutor v Uhuru Muigai Kenyatta, Order vacating trial date of 7 October 2014, convening two status conferences, and addressing other procedural matters, ICC-01/09-02/11, 19 September 2014
- 94.
Prosecutor v Uhuru Muigai Kenyatta, Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11, 3 December 2014
- 95.
International Criminal Court Office of the Prosecutor, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta, 5 December 2014
- 96.
Prosecutor v William Samoei Ruto and Joshua Arap Sang, Decision on Mr Ruto’s request for excusal from continuous presence at trial, ICC-01/09-01/11, 18 June 2013
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Nichols, L. (2015). From Nairobi to The Hague. In: The International Criminal Court and the End of Impunity in Kenya. Springer Series in Transitional Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-10729-5_4
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