MANY victims of the post election violence of 2008 in the ICC case against Deputy President William Ruto are still hurting but are under intense pressure to “accept and move on”.
Five years after the violence in which over 1,100 lives were lost, over 300,000 displaced and thousands wounded, survivors are still plagued by difficult physical, psychological and economic challenges.
According to three reports compiled in the last eight months by the Victims Participation and Reparation Section (VPRS) of the ICC, the plight of the victims remains pathetic even with the court’s intervention.
The reports are quietly filed every two months to the trial chamber following an order to that effect last October. The reports are based on joint field findings of VPRS and victims lawyer Wilfred Nderitu.
According to the last report ahead of trial against Ruto, victims said they have come under intense pressure of the new-found Kenyan philosophy of “accept and move”.
“Although they feel under pressure to 'accept and move on', it was reported that many do not feel able to do so,” it says.
In a footnote to the phrase, the report says “accept and move on” is “a phrase commonly used by media outlets and politicians following the March 2013 election.”
The victims complained that the start of trials against Ruto had placed them in an even trickier situation:
“The victims are cautious about being identified as participating in the Court’s proceedings due to a misunderstanding of the role of victims compared to that of witnesses in the proceedings; the victims would like the case to be heard in the Hague,” the report said.
The ICC process is unique in the sense that drafters of the Rome Statute ensured there was place for victims in judicial process of the court. However, victims' role is not supposed to prejudice rights of accused to impartial trial. Victims are not witnesses.
The second sentence of the Rome Statute’s preamble points to a prominent role of victims in the establishment of the court. It says the court is established “mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”
The statute makes it clear that the court has a responsibility to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses".
Some victims remain refugee’s years on. This is the group that crossed to Uganda over the violence and has remained holed up there five years later. In the July report, the VPRS reported having met some victim-refugees from Kamba and Kikuyu communities.
“They cited lack of support from the Government of Kenya or the Government of Uganda, particularly in relation to access to medical facilities and post-primary education for their children and their children have been traumatised due to the continuous (to this day) displacement,” the report says.
Other interactions between victims and their intermediaries (local organisations that work with victims) revealed that some of the victims are still suffering from extreme poverty and “in many cases untreated physical or psychological ailments stemming from the PEV.”
Among other things, participants demanded intervention of the ICC’s Trust Fund for Victims. They said the fund could come in handy for some of their own who continue to suffer from physical and psychological trauma.
The TFV offers support to people who have suffered from crimes being probed by the ICC. It implements reparations upon successful conviction but also provides assistance to victims and their families using voluntary contributions.
Currently under its assistance mandate, the fund is supporting over 110,000 victims of crimes in Northern Uganda and DRC. The support entails physical and psychological support at both individual and community levels.
In late 2011, the fund was hesitant to set camp in Kenya because the charges had not been confirmed. Gaëlle van der Meerendonk, executive assistant at the TFV secretariat, had told the Star at the time that if charges were confirmed the board of directors of the fund “may” make a determination on assistance for victims.
The charges were confirmed in early 2012 but to date the board is yet to come on board in Kenya. However, the basis for the kind of assistance the fund offers is largely moral than legal in obligation. It cannot therefore be demanded.
VPRS was unable to compile the third report which was due in May this year owing to the March 4 election. They said they had not been able to conduct “significant field-related activities in Kenya” at the time.
In the report preceding that, however, the unit had met with 96 of the 120 victims who participated in the confirmation of charges hearing. The unit also met with “large numbers” of victims who had fallen outside the scope of the case due to the narrowing of the geographical and temporal parameters by the confirmation decision of January 23, 2012.
Geographical space is the specific areas where crimes are confirmed to have taken place. Temporal scope on the other hand is the time-period within which those crimes were confirmed to have taken place.
For example, while the prosecutor had sought to charge Ruto for crimes which took place in “Uasin Gishu District”, the pre-trial chamber only allowed her to charge him with events of “greater Eldoret (town) Area” and “Turbo Town.”
The move excluded locations such as Kipkaren and Burnt Forest where some of the victims came from. On temporal aspect, the prosecutor had sought to hold Ruto for events which took place from December 2007 to the end of January.
The pre-trial chamber narrowed this to events which took place on December 31, 2007 in Turbo Town and January 1-4 in Eldoret Town.
The unit met victims of Kikuyu and Luhya communities in Nakuru town. The victims cited security concerns, saying they continued to live amongst the same communities that perpetrated the violence against them.
They also complained of lack of support from the government to reintegrate them back into society, and a general lack of trust in the legal and electoral systems due to the fact that many of the victims in the group also suffered harm in election-related violence of 1992 and 1997.
In Uasin Gishu, the unit met with victims from the Kikuyu community who were forcibly displaced from the county and who all lost property during the violence.
“The group indicated that they continue to suffer as a result of being forced to flee from their homes and the loss of property associated with their displacement,” the report says.
They complained that the government “had done little” to restore their livelihood and that the local judicial mechanisms had failed them. Like the Nakuru victims, they said they lived in fear since they reside among the same tribal community that perpetrated the violence against them. (Editor's note: President Uhuru Kenyatta and Deputy President William Ruto last week effected a Sh3.2 billion cash payment programme for IDPs. Each IDP household received Sh400,000).
In a separate meeting in Uasin Gishu with victims from the Luhya, Kikuyu and Kamba communities, the victims talked of “hardships after having lost most of their possessions and property when they were forcibly displaced.”
In Vihiga, victims said they had been “reduced to poverty with little or no support from the government. Some mentioned that their children were dying because they were no longer able to provide for them.”
In Nyanza, victims from Kikuyu and Maasai communities said they have all had to struggle considerably in order to maintain their livelihood while relocating and rebuilding.
“They remain concerned about being targeted again for co-operating with the Court, but consider that they deserve justice through reparations for the harm that they suffered.”
Despite many engagements with the victims, the unit notes that many issues remain unclear to the victims. Among them is the thorny issue of reparations should Ruto and Sang be convicted.
Issues around reparations include whether those who chose not to participate in the cases, alongside those who received stipends from the government of Kenya to relocate, would be eligible for potential collective reparation.
Other complaints persistently running through victims engagement is why the charge of rape was not proffered against the accused yet many women attest to having been raped in the relevant locations.
This is even made more pronounced by the fact that Ruto’s co-accused in the other Kenyan case, President Uhuru Kenyatta, is charged with the count of rape. Other complaints include why Kericho and Kisumu are not included in the prosecutor's case.
The Waki Commission, which conducted an investigation into the post-election violence, recounted horrid tales of sexual violence. It talked of “horrendous female and male genital mutilation.
“Women and children’s labia and vaginas were cut using sharp objects and bottles were stuffed into them. Men and boys, in turn, had their penises cut off and were traumatically circumcised, in some cases using cut glass. Furthermore, entire families, including children, often were forced to watch their parents, brothers and sisters being sexually violated,” Waki report states.
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