NAME OF MECHANISM

International Criminal Court

PERIOD OF OPERATION

March 2010 – present

MANDATE AND OPERATIONS

In March 2010, the Pre-Trial Chamber approved the International Criminal Court (ICC) prosecutor’s request to investigate Kenya’s 2007–2008 post-election violence after the Kenyan government showed no initiative in launching its own prosecutions. This is the first ICC investigation begun on the prosecutor’s initiative, as previous cases have been referred by state parties or by the United Nations Security Council.

RESOURCES

International Criminal Court website: Situation in the Republic of Kenya
Report of the Commission of Inquiry into Post-Election Violence (Waki Report) [2008]
Press Conference of the Prosecutor of the International Criminal Court [Nov 2009]

RESULTS

On 15 December 2010, ICC Prosecutor Luis Moreno-Ocampo released a list of the six senior allies of President Mwai Kibaki and Prime Minister Raila Odinga suspected of having been the main architects of the post-election violence. The suspects, known as the “Ocampo Six,” are Higher Education Minister William Samoie Ruto, Minister for Industrialisation Henry Kiprono Kosgey, radio executive Joshua Arap Sang, Cabinet Secretary Francis Kirimi Muthaura, Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta and former Police Chief Mohammed Hussein Ali [BBC| 15 Dec 2010].

The Kenyan government responded by asking the ICC for a postponement and announcing that it is capable of prosecuting the suspects in domestic criminal courts. The plea was based on reforms the government had implemented since 2008, including adopting a new constitution [BBC | 8 Apr 2011]. On 23 December 2010, the majority of Kenyan parliamentarians, many with links to the suspects, voted for Kenya to pull out of the ICC’s Rome Statute [BBC| 23 Dec 2010]. In February 2011, the African Union announced its support for the Kenyan government’s efforts to delay the ICC case [BBC| 1 Feb 2011].

On 7 April 2011, Ruto, Kosgey and Arap Sang, all allies of Prime Minister Odinga, appeared at an ICC preliminary hearing during which they were accused of crimes against humanity but not formally charged [BBC | 7 Apr 2011]. On 8 April 2011, Kenyatta, Kirimi Muthaura and Hussein Ali, allies of President Kibaki, appeared at a similar hearing. The ICC pre-trial judges are expected to decide in September 2011 whether the suspects will be formally prosecuted [BBC | 8 Apr 2011].

On 30 May 2011, ICC Pre-Trial Chamber II announced that the ICC investigations into the post-election violence would continue as the Kenyan government had not demonstrated that it would prosecute those responsible [Reuters| 31 May 2011], a decision the government soon appealed. On the same day, the Kenyan media reported that “all crucial witnesses” to the ICC’s cases had been transferred out of Kenya for witness protection [Standard | 31 May 2011].

In June 2011, it was reported that at least 2,350 victims of the post-election violence applied to take part in the cases against the “Ocampo Six” or to be compensated. Of these, 550 victims applied to be part of the case against Kenyatta, Muthaura and Hussein Ali, while 1,800 victims applied to be part of the case against Ruto, Kosgey and Arap Sang [Daily Nation | 28 Jun 2011].

BACKGROUND

As part of negotiations surrounding the peace agreement made in February 2008, the head of the African Union (AU) Panel of Eminent African Personalities, former UN Secretary-General Kofi Annan, made a request to ICC Prosecutor Luis Moreno-Ocampo to investigate the 2007 post-election violence.

In 2008, the Commission of Inquiry into Post-Election Violence (Waki Commission) report identified key individuals for prosecution, as well as offered broader recommendations on institutional transformation. The names of individuals to be prosecuted were forwarded to the ICC after the Kenyan government missed several deadlines set for the creation of a special tribunal.

In December 2009, Ocampo applied to the Pre-Trial Chamber judges for permission to open a case against the main perpetrators of the violence. Ocampo argued that he has reasonable basis to believe that the attacks against Kenyan civilians during the post-election violence constituted crimes against humanity [AP | 31 Mar 2010].

Kenya ratified the Rome Statute on 15 March 2005. In accordance with the complementarity principle, the ICC may only intervene if there are no national proceedings against those responsible for crimes.

SOURCES

[Associated Press | 31 Mar 2001]
[BBC | 15 Dec 2010]
[BBC | 23 Dec 2010]
[BBC | 1 Feb 2011]
[BBC | 7 Apr 2011]
[BBC | 8 Apr 2011]
[Daily Nation | 28 Jun 2011] 
[Reuters| 31 May 2011] 
[Standard | 31 May 2011]