ICC Victims' Role Under Scrutiny in Kenya

"Now they will see fire! Go, go for it!" a victim of Kenya’s post-election violence cheered as she watched proceedings unfold at the International Criminal Court, ICC, on a television screen in a remote town in the Rift Valley.

Others in the room waited in anticipation. They were not disappointed, as their legal representative asked the questions they wanted to put to the suspects themselves.

Hearings were held at the ICC in September to determine whether prosecutors had enough evidence to try six public figures suspected of orchestrating Kenya’s 2007-08 post-election violence.

Observers say the participation of victims in legal proceedings at the ICC provides a crucial opportunity for them to contribute to the justice process. But lawyers representing suspects before international courts fear their involvement comes too early on in the case, and puts the defendants at a disadvantage.

In the first of two cases, the former education minister, William Ruto, ex-minister of industrialisation, Henry Kosgey, and radio presenter Joshua Sang are accused of crimes against humanity for the bloodshed sparked by the alleged rigging of presidential elections at the end of 2007.

The second case involves Francis Mathaura, chairman of the national security advisory committee, Deputy Prime Minister Uhuru Kenyatta, and Mohamed Ali, Kenya's former police commissioner, all of whom face similar charges of planning carnage that killed approximately 1,000 civilians and injured more than 3,000 in under two months.

Thousands of kilometres away from The Hague, the voices of the victims who bore the brunt of the violence are urgent and real.

Under the ICC’s founding treaty – the Rome Statute – many have gained the right to participate in the trials and to be represented in court by a lawyer.

The ICC is the first international court to incorporate victims into criminal proceedings.

“They want to play meaningful roles in this court,” Morris Anyah, the legal representative for 233 victims from Kenya’s Nakuru and Naivasha regions, explained. “Their lives have been changed forever, and they would not want to be silent forever.”

However, judges still need to confirm the charges against the six suspects before any trial can take place, prompting concern that the involvement of victims could hamper defence cases.

Ken Ogeto, who is defending Muthaura, said victims should only be allowed to participate at the end of the trial. Involving them at the confirmation of charges stage or in the trial itself is like "having a trial within another trial”, he said.

Ogeto warned that victim involvement places an excessive burden on the defence, forcing it to simultaneously counter legal arguments from both the prosecution and the victims’ lawyers,

“The defence has to prepare to tackle the prosecution and the victims at the same time,” he said.

Others who share Ogeto’s concerns are calling for victims being allowed to participate in proceedings only if and when suspects are convicted.

“As a defence lawyer, I see no need for victim participation at the confirmation hearing,” said Michael Karnavas, a lawyer who represents defendants at the International Criminal Tribunal for the former Yugoslavia, ICTY, in The Hague as well as the United Nations-backed tribunal in Cambodia. “The judges should make their findings on whether to confirm all, part, or none of the charges drawn up, without being influenced by the victim parties, who are there as advocates, and effectively shadow prosecutors.”

Those identified as victims are allowed to contribute to cases through a lawyer who can put their concerns directly to the court.

In a landmark decision delivered by ICC’s appeals judges in its first trial, that of Congolese militia commander Thomas Lubanga, victims were given a green light to lead on, and also challenge, evidence relating to the criminal responsibility of the defendant. Following reams of witness testimony on rape and other abuses allegedly committed by those under Lubanga’s control, judges granted a request by victims’ lawyers for new charges to be added in the case.

It is this sort of direct impact on proceedings, right from the start, that holds value for the victims in ICC cases.

“It is frustrating because of the distance from where victims are to the ICC,” Brigid Inder of the Women’s Initiative for Gender Justice in The Hague said. “They can feel a bit disconnected, but their legal representatives are there for them and they have a formal status at the court.”

Anyah’s clients, along with 327 other victims represented by lawyer Sureta Chana, have been approved by judges to participate in the proceedings against the six Kenyan suspects.

In a manner similar to the Lubanga case, Chana, who represents victims in the case against Ruto, Kosgey and Sang, has asked pre-trial judges to add charges to those already levelled at the suspects.

The victims’ representative wants charges of destruction of property and looting to be added to the existing charges of crimes against humanity. In their bid to add these charges, they told the court that some victims have still not been able to return to their homes because others have occupied their properties.

“These proceedings directly affect the personal interests of those I represent at the very individual, family and community. It affects the future of their country and their succeeding generations who live in it,” Chana said at the confirmation of charges hearing in early September.

On November 9, Chana requested judges to allow her to make further submissions on behalf of 126 of the victims she represents. During consultations with Chana during October, victims said that the prosecutor's case was lacking in both evidence and scope. Among other testimony, Chana cited accounts from victims in the Ruto, Kosgey and Sang case that widespread rape occurred during the post-election violence, although the three suspects are not charged with rape. The victims were also concerned that the prosecutor’s investigations had not implicated Prime Minister Raila Odinga in the violence.

If a conviction is handed down by the court, victims represented at the ICC will also be entitled to seek compensation for suffering endured as a result of crimes perpetrated against them.

While victims can benefit greatly from their role in the justice process, there are concerns that they might exert undue influence on the evidence presented in a case.

Karnavas said the threshold of evidence needed to confirm charges against the suspects was already set fairly low by the court, and additional accounts from victims would tips the balance further in the prosecutor’s favour.

There is no need to “try and bolster the nature of evidence through the use of victims”, he said.

However, other commentators keenly defend the right of victims to participate in proceedings at the ICC, right from the beginning of a case.

They say it helps the judges make a fully informed decision about the criminal responsibility of a suspect.

“Judges will look at evidence given by all parties [in reaching their decision]. They will also [take] into consideration answers given by witnesses when being cross-examined by victims’ representatives,” said Alpha Sesay, a legal officer for the Open Society Justice Initiative which monitors trials at the ICC.

Others say victim accounts of the crimes under investigation will help judges to understand and shape a narrative of the post-election violence and how it unfolded.

For the victims, the expectations of a trial go beyond any convictions that are handed down or compensation that might be given out.

A final judgement and narrative of events becomes part of the healing process by contributing to “the books of history”, said Frank De Rue, the UN Special Rapporteur on Freedom of Expression.

However, De Rue also recognised the traumatic burden placed on victims who participate in what are long, drawn out proceedings held over several years.

“I would not insist that victims go for it because of the trauma, but at the end of the day, they have a right to know who participated in crimes against them,” De Rue said.

The participation of victims can make judicial proceedings last even longer, prompting some experts to call for a balance whereby victims can provide additional information to judges, without hampering the trial.

“I am mindful that the prosecution is not always attentive to all concerns that victims may have, and to that extent, some victims’ participation is necessary,” Karnavas said. “The question is how much is enough, without infringing on the fair administration of proceedings, including the fair trial rights of the accused?”

Dealing with victims’ accounts of crimes and atrocities given in pre-trial proceedings can be a daunting challenge for the defence, particularly if time and resources are short.

However, in cases where it appears likely that judges will confirm charges against the suspects, Karnavas says the defence might do better to ignore them.

“The wiser course of action for the defence at the confirmation of charges stage may be to lay low and not engage in grand opening statements and lengthy examination of witnesses,” Karnavas said. “Why reveal the theory and strategy of the case and expose the weakness of the prosecution case at this stage, and risk harming a co-accused, and worst yet, making the case harder to defend?”

However the defence chooses to handle the victims, lawyers representing them believe their clients have a crucial role to play both in the administration of justice and in determining Kenya’s future as it recovers from the post-election violence.

For Chana, the role of victims would lose its value if they were not allowed to put their concerns directly to judges, and at the earliest opportunity.

“It will be too late if victims are only allowed to come in at the end of the trial. Victims’ participation is meaningful from the start. In the end, it is the victims who were injured, [and who] lost property and loved ones,” Chana said.

Evelyn Kwamboka is an IWPR-trained journalist in Nairobi.

This article was produced as part of IWPR’s international justice training programme for Kenyan journalists, held in The Hague.