ICC: Kenya suffers another blow

Blamuel Njururi
Nairobi-Kenya (Jun 1) – The International Criminal Court (ICC) has dismissed a Kenya government challenge to the admissibility of crimes against humanity cases six of its citizens are facing at The Hague following the 2007-2008 post election violence.
The ICC also declined the Kenya government a request to be heard orally before it made the decision on its admissibility challenge case. The dismissal stands out as a major step towards the hearing of the cases at The Hague and effectively blocking the door for the suspects to be tried by a tribunal back home.
The Kenya government has itself to blame. Parliament in Kenya blocked efforts to set up a local tribunal three times preferring the post-election violence perpetrators to be tried at The Hague. That position changed when the ICC special prosecutor Luis Moreno-Ocampo named six key suspects comprising Deputy Prime Minister Uhuru Kenyatta, head of the Civil Service and secretary to the cabinet Francis Muthaura, former ministers William Ruto and Henry Kosgey, former commissioner of police Mohammed Hussein Ali, and a radio presenter Joshua Sang.
The six have since appeared before the Pre-Trial Chamber for an initial appearance during which the charges before them were read. Hearings for the confirmation of charges will begin on September 1 and September 21. Back home a flurry of anti-ICC campaign has seen public rallies dubbed “prayer meetings” in which the cases are described as an affront to Kenya’s sovereignty intended to derail presidential bid for two of the accused – Kenyatta and Ruto – during the General Election next year.
The Kenya government had argued that it had put the necessary legal mechanism in place to try the six at home, based on having promulgated a new constitution last August. Along with, initiating police investigations four years after the bloodletting that claimed 1,500 lives, generated 650,000 internally displaced persons (IDPs) and cost the economy close to a billion dollars. The post election mayhem continues to cost Kenyans dearly in terms of commissions seeking answers to the unprecedented carnage and the resettlement of IDPs.
The ICC cases are also bleeding the Kenyan taxpayers’ coffers as their government engages in an international campaign to stop The Hague proceedings. Since December last year millions of dollars have gone down the drain as the Vice President Kalonzo Musyoka and cabinet ministers globe trot seeking sympathy from African, Asian, European and American continents to have the cases deferred. The Kenya government efforts have gone as far as the United Nations Security Council that put the matter in abeyance. The government has also hired a battery of lawyers whose fees run into ten of thousands of dollars.
Surprisingly, while the Kenyan government says it wants the cases heard at home and investigations by the police are on four years since the blood bath, it has protested to the ICC that that the Prosecutor has denied it access to the evidence that he is holding. It avers that this “may hamper the national investigation and deprive it of potentially useful evidence to which the government has no access”. The government failed to investigate or prosecute post election violence in which Kenyans died and property was destroyed in 1992, 1997 and 2002.
On his part the ICC prosecutor has been urging the court to allow him hold onto his evidence for fear that disclosure would put the lives of potential witnesses in danger. His fears are not far fetched. Kenya has a history of gross impunity and laxity in punishing political crimes. The political assassinations of politicians Pio Gama Pinto, JM Kariuki and Robert Ouko have never been unraveled several decades since they were committed. The Ouko murder in 1991, claimed more than 20 other lives, including those of potential witnesses and police officers involved in its investigations.
Already one of the suspects, former Higher Education Minister Ruto, has publicly been exposing what he claims to be witnesses who were “paid and couched to fabricate evidence” against him. He has been at the forefront to discredit not only the ICC prosecutor’s evidence (even before he sees it) but the entire trial process. His campaign has incensed Ocambo, who has sent court officials to Nairobi to seek government assurance over witness protection.
Ruto is on record as having claimed in a meeting with former US ambassador William Ranneberger, Assistant Secretary of State for Africa Johnnie Carson and National Security Council director Michelle Gavin on May 12, 2009, that the Kiambaa church inferno, in which 17 people were burned alive, was “the result of an accidental fire”. According to Ruto, the cause of the blaze was an accidental kitchen fire “during preparations for lunch”.
A judicial commission by Justice Waki reported in 2009 that “the incident, which captured the attention of both Kenyans and the world, was the deliberate burning alive of mostly Kikuyu women and children huddled together in a church in Kiambaa on 1 January 2008. They had sought refuge in the church following a 30 December attack on their village of Kimuri, bordering Kiambaa.”
Justice Waki added; “According to reports, including witness testimony, mattresses and blankets were set ablaze with petrol and thrown into the building while mothers and babies who were trying to flee the inferno were pushed back into the church. Kikuyu men attempting to defend their church and loved ones were hacked to death with machetes, shot with arrows, or pursued and killed. The death toll for this horrific incident was 17 burned alive in the church, 11 dying in or on the way to the Moi Teaching and Referral Hospital, and 54 others injured who were treated and discharged.”
Sheltering himself in an ethnic cocoon, Ruto expressed frustration with the media, which he felt had blamed members of his Kalenjin ethnic group for locking and burning down a church full of asylum seekers in Eldoret during election violence. He emphasized that his people had done no such thing. He did not volunteer any information on who could have been behind the macabre murder.
Two days after the US envoys meeting with Ruto on May 14, Prime Minister Raila Odinga, Orange Democratic Movement (ODM) Luo and Kalenjin Members of Parliament boycotted the funeral of the Kiambaa victims, which was billed as a reconciliation gesture between the communities of the Rift Valley. The President Kibaki and his Party of National Union (PNU) officials attended the funeral. Fourteen of those buried in the church compound died in the fire while another 22 bodies located around the church compound and were not identified or claimed by relatives who had already fled.
The ODM boycotted the burial because of plans by the government to build a memorial at the church and the decision to bury victims of the violence who did not die at the Kiambaa church. The ODM felt that attending the burial might endorse claims that they were the aggressors and PNU the victims. But the reality was that they did not want a Rwanda-like memorial that would be evidence of the criminal massacre.
Recent times have witnessed a major fall out between Odinga and his Kalenjin MPs some of whom have been claiming that those involved in post election violence were responding to his call for mass action. They say evidence will emerge in The Hague hearing. Odinga has in turn has challenged them to go ahead and give any incriminating evidence they may have.