The charges against William Ruto, Kenya’s former education minister suspended on corruption charges, Joshua Arap Sang, a broadcaster for Kass FM radio station, cabinet secretary Francis Muthaura, and deputy prime minister Uhuru Kenyatta, were upheld.
Ruto, Muthaura and Kenyatta all stand accused of instigating the violence that swept Kenya in late 2007 and early 2008. Arap Sang is accused of contributing towards the commission of these crimes by putting Kass FM at the disposal of those organising the violence.
The four represent the two opposing sides in the election dispute and ensuing violence. They are divided accordingly into two cases, one against Ruto and Arap Sang of the Orange Democratic Movement, ODM, the other against Muthaura and Kenyatta of the Party of National Unity, PNU.
Ruto, Arap Sang, Muthaura and Kenyatta remain at liberty pending the start of their trial, although presiding Judge Ekaterina Trendafilova stressed that this depended on their continued cooperation with the court, and in particular on them not engaging in incitement to violence or hate speech.
The clashes between ODM and PNU supporters following the December 2007 election led to the death of more than 1,100 people and displaced over 600,000 others.
The ICC launched an investigation in March 2010 after the Kenyan state failed to initiate prosecutions itself.
Although the ICC’s decision to bring charges was governed by legal rather than political considerations, the debate around the court’s activities in Kenya is highly politicised. Some of the accused are seen as heroes by their supporters, while others regard them as criminals.
Ahead of the ruling, the International Crisis Group warned that if the ICC was seen to favour one side or the other, it could have a serious impact on internal politics.
“If the announcements of the decisions on the charges were to be poorly coordinated or framed, unequal treatment of the suspects could also exacerbate tensions, especially between those groups that might feel persecuted and those that had no leaders before the court,” the advocacy group said in a report.
However, this danger seems less likely now that two of the three accused in each case are to go on trial.
The ICC chamber was not convinced that there was enough evidence to support proceedings against Henry Kosgey, currently chairman of the ODM, or – on the PNU side – Mohammed Hussein Ali, Kenya’s police chief at the time of the events and now head of the postal service.
In the case of Kosgey, presiding Judge Trendafilova said the Office of the Prosector, OTP had relied on one “anonymous and “insufficiently corroborated” witness. She also said that Kosgey had faced prejudice because certain key dates on which meetings pertinent to his defence were alleged to have taken place were redacted from the evidence that the prosecutor provided.
Ali was accused of inciting police to commit crimes in the eastern areas of Nakuru and Naivasha, but Trendafilova dismissed this on the grounds that no clear evidence had been presented to suggest that police participated in on-the-ground attacks in these areas.
When the judges reached their decision, one of the three presented a dissenting opinion.
Judge Hans-Peter Kaul from Germany did not agree that the alleged offences should be dealt with by the ICC. He argued that although the alleged crimes constituted serious offences under Kenyan criminal law, they did not constitute crimes against humanity as defined by the ICC’s founding Rome Statute, and they should therefore be tried in Kenya.
Human rights group both in Kenya and abroad broadly welcomed the decision to prosecute four of the accused, although some had reservations about charges being dropped against the two others.
Ken Wafula, a human rights activist from Eldoret in eastern Kenya, where much of the violence took place, said the ruling had changed the future of his country.
“The 2012 elections will be peaceful,” he said. “The decision to proceed with this case means that the victims of post-election violence can now say they have not been let down by the international criminal justice system in the same way that they have been let down by the local justice system.
“I am sure that those that might want to provoke further violence in future elections will think twice, because those of us who are witness to violence, or are victims to it, will have the courage to be vigilant and report [to the ICC] everything that has taken place.”
At the same time, Wafula said he was disappointed that not enough evidence had been gathered to proceed with the other two cases, adding that he would be contacting the OTP about the possibility of gathering more evidence.
Under Article 61 of the Rome Statute, the prosecutor is entitled to submit a new request for a confirmation of charges if fresh evidence is found.
“We will be pushing the prosecutor to carry out more investigations and we are ready to help him so that these charges can be confirmed,” Wafula said.
Amnesty International also welcomed the ruling, while insisting that prosecutions for the post-election violence must not just end with the trial of four individuals.
“Today’s decision by the ICC is an important milestone for victims in their search for justice, truth and reparations for crimes which took place during the post-election violence,” Justice Nyang’aya, director of Amnesty’s Kenyan office, told IWPR. “But these are just four individuals. Thousands of human rights abuses, some of which may amount to crimes against humanity, took place during the post-election period and thousands of victims are still waiting for justice. It is vital that the Kenyan authorities open investigations and, where there is sufficient admissible evidence, prosecute all those suspected of committing crimes.”