Kenya Victims Relieved by Refusal to Postpone ICC Cases

Kenyans who suffered in the bloodshed that followed a disputed election in 2007 have welcomed a decision by the United Nations Security Council to reject a bid to postpone the trials of the country’s leaders in The Hague.

The Kenyan government had asked the Security Council to delay the cases against President Uhuru Kenyatta and his deputy, William Ruto, at the International Criminal Court (ICC) for a year on the grounds that holding the trials would jeopardise international peace and security.

However, the request failed to secure the nine votes it needed to be passed, with only seven out of 15 council members in favour of postponement. The remaining eight abstained.

Kenyatta, Ruto and broadcast journalist Joshua Arap Sang have been charged by the ICC with planning and financing two months of carnage that was sparked by the disputed outcome of presidential polls in December 2007. More than 1,100 people were killed and 650,000 others lost their homes before a peace agreement was reached in February 2008.

The trial of Ruto and Sang got under way in September, while Kenyatta’s separate case is not due to start until February 5, 2014.

Under the ICC’s rules, the UN Security Council can postpone a case for up to a year if it feels that proceeding with it would be a threat to international peace and security. The Kenyan government argued that following the attack by Islamic militants on a Nairobi shopping centre in September which killed at least 67 people, the president and deputy president needed to remain at home to deal with security issues facing the Horn of Africa. The al-Qaeda-linked group al-Shabab claimed responsibility for the attack.

Victims of the unrest that hit Kenya in late 2007 and early 2008 welcomed the decision not to postpone the cases.

Esther lost her husband in the violence and now lives with her seven children near the town of Eldoret in the Rift Valley, one of the areas worst hit by the violence.

“It’s a day of victory for us [victims] and the decision deserves a celebration because our voice triumphed at the [Security Council],” she told IWPR. “A bold decision such as this renews our hope for justice that has been elusive for over five years now since the violence.”

Another victim, Kiprotich, said the government’s request to postpone the cases was not justified.

Kiprotich was shot by police near Eldoret in 2008. He says the government should be held accountable and should compensate him for his injuries.

“All these years I have remained paralysed, though [I am] optimistic that justice will catch up with whoever sanctioned the post-election chaos,” he said.

A succession of efforts by the Kenyan government to put a stop to the cases at the ICC has not gone down well with victims. This was the government’s second attempt to postpone the trials, following an earlier request to the Security Council in 2011. In May this year, Kenya’s UN ambassador Macharia Kamau wrote to the Security Council asking it to terminate the ICC cases altogether.

Meanwhile, the African Union has got behind Kenya’s efforts and issued a resolution saying that heads of state should not stand trial in international courts while they are in office.

“If truly our leaders believe in their innocence why can’t they allow this process to proceed at once?” Kiprotich said.

Others have criticised the shift in position by Kenyatta and Ruto since they were elected in March. During campaigning, the two candidates said that if they were elected, their cases in The Hague would not affect their ability to govern.

“Our leaders knew very well from the onset what awaited them at the court, but instead rallied people behind themselves promising them that their cases would not stop them from governing the country – and now they are crying foul,” said Martin, who lost two of his children when attackers burnt down his house in January 2008.

The failure of the deferral request came a day after an opinion poll conducted by the research group Ipsos Synovate showed that support for the ICC cases was increasing among Kenyans.

Kenyatta’s supporters are urging him not to travel to The Hague when his trial opens in February.

But according to the November 14 Ipsos Synovate survey, 67 per cent of respondents want Kenyatta to appear at the ICC. Only 25 per cent said he should not go to The Hague for the start of his trial.

The poll, which sampled the views of 2,060 households across Kenya’s eight provinces, showed a slight rise in support for the cases.

In this month’s survey, 42 per cent of those polled said the cases should continue at the ICC as they are, compared with a June figure of 39 per cent. However, 30 per cent said the cases should be dropped completely, compared with 29 per cent in June.

In Kenyatta's and Ruto’s political strongholds, the numbers of those opposed to the trials were significantly higher than the national average.

Some Kenyans expressed anger at the outcome at the Security Council and called for their country to pull out of the Rome Statute.

“ICC or no ICC, Africa must shape its own destiny [through] an en masse withdrawal from the ICC treaty,” Solit, a resident of Eldoret said.

While the bid to postpone the trials was rejected, the Security Council vote brought to light a sharp division between member states which analysts say will give heart to the suspects.

Russia, China, Pakistan, Azerbaijan, Togo, Morocco and Rwanda, all non-ICC member states, backed a postponement of the cases. The countries that abstained were Britain, United States, France, Guatemala, Argentina, South Korea, Australia and Luxembourg.

The fact that Security Council support for the trials going ahead was limited could lead to further attempts to get them postponed.

“The fact that the majority in favour of rejecting it was actually pretty slight gives them [the suspects] encouragement that they are not far off actually having a majority,” Nicholas Cheeseman, director of the African Studies Centre at Oxford University said.

Cheeseman argues that this leaves the door open for the suspects to try again to find a political way out.

“That division in the vote will allow [the suspects] to do that because they can say it is not the UN, it is this set of countries [who oppose a postponement], and that’s what bringing things into the open through the vote has done. And they may well do that,” he said.

Legal experts in Kenya say it was inevitable that the request for a postponement would fail. Those states that abstained wanted to avoid a postponement, but did not want to directly oppose the dominant view within the African Union.

“UNSC was never going to grant a deferral on the simple reason that it would not wish to be seen to interfere with the court’s independence,” Willis Otieno, a lawyer at the Kenyan High Court, said. “[The] Security Council’s powers can only intervene or be exercised sparingly.”

The rejection of a deferral gives the suspects a starker choice as to whether to continue to push countries to support their efforts to end the cases, or instead to focus on making the ICC process suit them as well as it can.

The Kenyan government is to call for changes to the Rome Statute when the Assembly of States Parties – the body that oversees the ICC – begins its annual meeting in The Hague on November 20. The proposed changes include an amendment that would allow heads of state to avoid trial at the ICC for as long as they are in office, and concessions on officials having to be personally present at trials in The Hague.

Cheeseman said the way in which the suspects and their supporters focused their efforts in the run-up to Kenyatta’s trial would reveal much about their intentions.

“Will they push very hard for something they are unlikely to get, or will they say we have lost that battle and settle for second best?” he said. “If we don’t see [the latter] it does make you wonder more and more whether they have decided that it is simply unacceptable to turn up.”

Robert Wanjala is a freelance reporter in Eldoret in Kenya’s Rift Valley region. IWPR’s Africa Editor Simon Jennings also contributed to this report.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.