Recent Court Documents in the 2 ICC Kenya Cases 15 September 2013

The CLR in the Ruto Sang case explained to the court the situation behind the withdrawal of 93 victims from the Kenya cases. In his view, only 60 out of the 93 actually fell within the scope of the ICC case against Joshua Sang and William Ruto. Some of the 60 were of ‘uncertain status’

The CLR stated that an organisation called the Amani Group had helped register these victims and it was this organisation that had forwarded the letter to the court seeking to withdraw 93 from the proceedings. The CLR however interviewed individual witnesses who had withdrawn. According to him, 2 main reasons were advanced by the withdrawing victims set out below:

1. the Victims were unsure how reparations from the Victims Trust fund would be distributed; they were opposed to collective compensation (e.g. building a school or hospital in the area) as perpetrator groups would, in the victims’ view, be beneficiaries as well.
2. Some felt that the ongoing peace and reconciliation process required that they pull out of the ICC proceedings
3. Others worried that those they thought were perpetrators were never charged, and they feel the ICC did not listen to their concerns about this.
4. Another group are relying on a case filed in the High Court of Kenya seeking compensation for their suffering during the violence.

The CLR also drew attention to the alleged attempts by the Kenyan Security Services to interfere in his meetings with victims.The suggestion was that an intimidating atmosphere had clouded the Kenya cases, discouraging victims from taking part.

He concluded that since the victims had not individually communicated their request to withdraw (Amani Group made the broad claim on their behalf) they should be presumed to be continuing with their participation until they do so.

The Ruto Defence applied to the Presidency of the ICC to vacate the decision of the Plenary Judges. The Judges had rejected his request to have his trial moved either to Tanzania or Kenya. They want the decision vacated to facilitate additional submissions by the Prosecutor and the Defence or, in the alternative to be reviewed for procedural impropriety and unfairness. They feel that a late filing by the Prosecutor seemed to sway the Plenary (see this post about the filing and Gladwell Otieno’s letter); the Defence- in line with one dissenting judge- felt that the Prosecutor had ambushed legal process by filing the submissions so late. The Defence suggested that the Plenary can be recalled to review its own decision.

TJRC, Mau Mau Regrets, Rhamu, Wagalla and Post-Election Violence Victims

There’s been a lot happening over the past few weeks relating to old and new atrocities in Kenya: here’s a short(ish) re-cap.

Beginning with old atrocities: just as Kenya celebrated its 50th year of independence, the Truth, Justice and Reconciliation Commission (TJRC) delivered its report– in several volumes- on human rights violations in Kenya between 1963 and 2008. There was the embarrassing spectacle of one of the persons adversely mentioned in the report (Bethwel Kiplagat, the TJRC Chairperson) ‘handing over’ that very report to another adversely mentioned person, Uhuru Kenyatta. It’s an image captured in the photograph within the following cartoon:

Copyright Standard Group Ltd.

Kiplagat was mentioned in relation to the Wagalla massacre. His fellow commissioners were less than impressed by his testimony about how much he knew about the Massacre at a time when he was a powerful figure in government circles and whether he orchestrated a diplomatic cover-up in the aftermath. Kenyatta is individually mentioned with respect to Post-Election Violence; his broader family constitute virtually the entire volume on land injustices (OK, I exaggerate, but not by much); I doubt even the bookies would take odds on the chances of implementation of the major recommendations of the Commission. In addition, several commissioners took issue with ‘editorial changes’ that they allege were made following suggestions by senior government operatives to soften criticism of Jomo Kenyatta’s land-buying and resettlement practices.

And just to throw a joker into the draw, two individuals have gone to court to block the tabling of the TJRC report in Parliament (one of the steps required prior to implementation).

While on the subject of past injustices, the TJRC was always careful in its report to highlight that rights violations with impunity was one of the lessons that the post-independence government (and Moi’s government) learnt exceedingly well from the colonial administration. Thus, although the colonial period was not really a part of the TJRC mandate, land confiscation, massacres and discrimination during the settler period are well covered in the report. So perhaps it’s appropriate that Britain is bucking the impunity trend and offering an apology- of sorts- and compensation to former Mau Mau fighters detained and tortured in the 1950s.

Maybe this is to head off further costly and embarrassing legal battles that might have offered a legal precedent for other former colonial subjects to seek redress from London. Britain has steadfastly maintained that the obligations for actions by its colonies’ governments were assumed by the post-colonial states. The post-colonial states disagree. As far as the foreign minister’s statement went, it’s not quite the ‘sympathy and regret’ that the British Queen offered the Irish people for centuries of oppression and misrule

but it’s not too shabby either. Ultimately, however, it is for the victims themselves to judge whether the regret suffices.

Now to more recent atrocities, over 90 victims are allegedly pulling out from the ICC proceedings. From the report I’ve read (and I definitely don’t vouch for its accuracy), it seems that these are victims participating in the Ruto, Sang case. They have a number of grievances, one of which is that they feel that the Prosecutor and the ICC in general no longer serve their needs. There is also a suggestion that they were less than happy with the choice of legal representative (Wilfred Nderitu was appointed to represent them), having their own candidate in mind. Glancing at the 2nd VPRS report, only 120 victims were authorised to participate in this case (as at 25 March). So if it’s true that over 90 of them have pulled out, that would be a huge setback for victim participation. However, the news report is not clear if these victims were part of 120 currently participating, or the larger group of 300+ who took part in the confirmation proceedings.

It is also important to note that victims refusing to take part does not directly impact the trial process itself.

Finally, it seems that the flames of Rhamu are once again being fanned. 2 more people are dead, after dozens were killed nearly a month ago. Before that, there were deadly clashes just before the March election between members of the Garre and Degodia clans. One hopes that the security forces take this seriously, rather than dismissing it as ‘inter-clan’ skirmishes.

Previously, the government was going to deploy troops to carry out disarmament in the Mandera County (where Rhamu is located). Not much more has been heard about this idea; Someone may have told them that pursuant to Article 241(3)(c) of the Constitution, the National Assembly must approve the use of the Kenya Defence Forces in quelling any unrest or instability within the country. The government might of course argue that the KDF would only be providing ‘logistical support’ to police without being directly involved in operations.

The issue is sensitive because fighting between Ajuran and Degodia in the 1980s led to the disarmament operation in Wajir involving the Kenya Army that culminated in the Wagalla massacre of 1984. In the course of several days, hundreds (if not thousands) were raped, tortured or killed by soldiers. The wounds and memories remain painful from that day to this. No security official was arrested or prosecuted in the aftermath.

Interestingly, Deputy President Wiliam Ruto was the one who said the government would send troops to Rhamu to stop this latest surge in violence. According to the TJRC report (Vol 2A, paragraphs 543-544), back in 2000, when Ruto was Deputy Minister for Internal Security, he delivered a ministerial statement in a stormy Parliamentary debate on the Wagalla massacre in which he denied that thousands died- the figure he gave was 53. Furthermore, while he admitted that 13 were shot by troops, he explained to Parliament that the other 40 died from ‘excessive sunshine’.

Recent Court Documents in the 2 ICC Kenya Cases 30 April 2013

The Trial Chamber granted leave to the Kenya government to make submissions on the cooperation that it has provided to the ICC. Earlier this month the Attorney General had filed an application for leave, complaining about the Prosecutor’s accusation that her investigations were hampered by a lack of cooperation from the Kenya government. The parties to the proceeding as well as the Legal Representative have 14 days (from 24 April) to respond to the GoK’s submissions.

The Legal Representative for Victims in the Ruto, Sang case has responded to the application by Ruto to waive his presence during much of his upcoming trial (owing to his ‘workload’ as Deputy President). In his response, Wilfred Nderitu argues that the accused’s presence is not a right that he can choose simply to waive. Furthermore, in other cases where the accused’s absence was accepted, this was strictly for short periods and due to unavoidable circumstances. Finally, he concludes by noting that having accused absent from their own trials may lead to participation lethargy among the victims and a feeling that ICC proceedings are merely symbolic.

The Kenyatta defence team complained about 4 documents that they felt the Prosecutor failed to disclose to them in a timely manner. The documents allegedly show further inconsistencies and contradictions in infamous OTP-4’s evidence. The defence team wanted to file additional submissions to the court in light of this recently disclosed information.