The International Criminal Court investigation in Kenya or the situation in the Republic of Kenya was an investigation by the International Criminal Court (ICC) into the responsibility for the 2007–2008 post-election violence in Kenya. The 2007–2008 crisis followed the presidential election that was held on 27 December 2007. The Electoral Commission of Kenya officially declared that the incumbent President Mwai Kibaki was re-elected however supporters of the opposition candidate Raila Odinga accused the government of electoral fraud and rejected the results. A series of protests and demonstrations followed, and fighting—mainly along ethnic lines—led to an estimated 1,200 deaths and more than 500,000 people becoming internally displaced.
After failed attempts to conduct a criminal investigation of the key perpetrators in Kenya, the matter was referred to the International Criminal Court in The Hague. In 2010, the Prosecutor of the ICC Luis Moreno Ocampo announced that he was seeking summonses for six people: Deputy Prime Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgey, Education Minister William Ruto, Cabinet Secretary Francis Muthaura, radio executive Joshua Arap Sang and former police commissioner Mohammed Hussein Ali. The six suspects, known colloquially as the "Ocampo six" were indicted by the ICC's Pre-Trial Chamber II on 8 March 2011 on charges of crimes against humanity and summoned to appear before the Court.
On 23 January 2012 Pre-Trial Chamber II confirmed the charges against Kenyatta, Muthaura, Sang and Ruto and dismissed the charges against Kosgey and Ali. The charges against Francis Muthaura and Uhuru Kenyatta were subsequently withdrawn by the prosecution. The trial of William Ruto and Joshua Arap Sang began on 10 September 2013, and ended on 5 April 2016 with the charges being dismissed. During the investigation the ICC prosecutor charged Walter Barasa, Paul Gicheru and Philip Bett with crimes against the administration of justice.
Background
On 27 December 2007, a general election was held in Kenya, comprising parliamentary, presidential and civic elections. The incumbent President, Mwai Kibaki, who represents the Party of National Unity and Raila Odinga from the Orange Democratic Movement were the leading candidates. Early indications showed that Odinga was likely to win the election, however the results announced by the Electoral Commission of Kenya showed that Kibaki had been re-elected and he was sworn in as president. Immediately after the Electoral Commission's announcement, Odinga rejected the result, claiming that widespread electoral fraud had taken place. European Union electoral observers also claimed that the electoral commission had failed to ensure the credibility of the vote.
In the days that followed violence spread throughout the country. An estimated 1,200 people died and more than 500,000 were displaced from their homes. A government spokesman accused Odinga's supporters of "engaging in ethnic cleansing", while Odinga claimed that the President's supporters were "guilty, directly, of genocide". Violence was mainly perpetrated along tribal lines; Mwai Kibaki is part of the Kikuyu tribe, the largest tribe in Kenya, while Odinga is a Luo. Violence continued until a peace deal was agreed upon between Kibaki and Odinga under the mediation of former United Nations Secretary-General Kofi Annan, whereby Kibaki would remain as president and Odinga would take over the newly created office of the prime minister.
As part of the mediation between Kibaki and Odinga in 2008, the two parties agreed on a series of accords. One of these was to establish the Commission of Inquiry into the Post-Election Violence, chaired by Kenyan judge Philip Waki to investigate the violence and particularly the actions of the police. Waki's report recommended that the Kenyan government set up a special tribunal to prosecute those responsible for the worst crimes. and although both Kibaki and Odinga voiced support for a local tribunal, the idea was rejected by the National Assembly. Waki passed his report, including a list of the names of those he considered most responsible for the violence back to Kofi Annan with instructions that it be passed to the International Criminal Court if progress with the local tribunal was not made. On 16 July 2009 the Waki commission delivered a copy of his report along with six boxes of documents and supporting materials to the International Criminal Court along with a sealed envelope containing a list of people who could be implicated in the violence. The prosecutor, Luis Moreno Ocampo opened the envelope, inspected its contents and re-sealed it. Initially the ICC gave the Kenyan government a deadline of July 2010 to establish a local tribunal before it would refer the case to the ICC Prosecutor Luis Moreno Ocampo. The "Waki List" has so far not been made public, and there is speculation that it may contain more names than the six who were initially indicted by the ICC; consequently there have been some calls in Kenya for either the ICC or Waki to release the list.
Pre-Trial Chamber authorisation The International Criminal Court's prosecutor may open a formal investigation in one of three circumstances: when a situation is referred by the government of a state which the investigation concerns, when the situation is referred by the UN Security Council, or under the prosecutor's own volition with authorisation from a Pre-Trial Chamber. On 6 November 2009 the ICC Presidency assigned the situation in Kenya to Pre-Trial Chamber II and the prosecutor made an application to that chamber for authorisation to open a formal investigation on 26 November. The judges of the pre-trial chamber granted this authorisation on 31 March 2010. The judges who made this decision, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser noted in their written ruling that while Article 15 of the Rome Statute does allow for the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC. In the ICC's history, this case was the first time the Prosecutor decided to investigate a case in this manner, with all prior cases being referred to the Court either by a national government, or by the United Nations Security Council.
Judge Hans-Peter Kaul made a dissenting opinion in the judgment, but the judgment was passed by a 2–1 majority. In his dissent he wrote:
Suspects
On 15 December 2010, Prosecutor Luis Moreno Ocampo named six suspects, and made an application to Pre-Trial Chamber II for summonses to be issued to them. The six men became colloquially known as the Ocampo Six (or Ocampo 6). The individuals named by Moreno Ocampo were: Major General Mohammed Hussein Ali – the chief executive of the Postal Corporation of Kenya, who at the time of the post-election violence had been the Commissioner of the Kenya Police. Uhuru Muigai Kenyatta – the then Deputy Prime Minister and Minister for Finance, who was also the chairman of the KANU political party, which had supported President Kibaki's Party of National Unity during the involved election. Henry Kiprono Kosgey – the then Minister for Industrialisation and member of the National Assembly for the Tinderet Constituency, who was also chairman of the Orange Democratic Movement. Francis Kirimi Muthaura – the then Head of Public Service, Cabinet Secretary and chairman of the National Security Advisory Committee. William Samoei Ruto – the then Minister for Higher Education, Science and Technology and ODM member of the National Assembly for the Eldoret North Constituency. Joshua Arap Sang – the head of operations at the Kalenjin language radio station KASS FM, who at the time of the post-election violence was a radio presenter.
Legal representation It was reported in 2011 that Kenyatta has recruited British lawyers Steven Kay and Gillian Higgins, who previously defended Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, to lead his legal team. Francis Muthaura initially appointed another British lawyer, Karim Ahmad Khan, who previously led the defence of Charles Taylor at the Special Court for Sierra Leone, and subsequently also recruited Essa Faal and Shyamala Alagendra who both formerly worked in the ICC Prosecutor's office. Ali's defence was led by Canadian John Philpot, Kosgey's by Julius Kemboi, and William Ruto appointed Dr. Kindiki Kithure and Katwa Kigeni. Kigeni also represented Joshua Sang. The Kenyan government agreed to pay the legal costs of Francis Muthaura and Mohamed Ali due to their actions being taken in the course of their public employment. This decision attracted criticism from many Kenyans.
Charges
The prosecutor presented the charges to Pre-Trial Chamber II as two separate cases, one case was the prosecution of Ali, Kenyatta, and Mathaura, and the second case is the prosecution of Kosgey, Ruto, and Sang. All six suspects were accused of crimes against humanity.
The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang In the case which concerns the Orange Democratic Movement's supporters' actions against the supporters of the government, William Ruto, Henry Kosgey, and Joshua Sang were charged with four counts of crimes against humanity. They were all accused of committing the crimes as indirect co-perpetrators at locations including Turbo town, the greater Eldoret area, Kapsabet town, and Nandi Hills town. Their charges were:
Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute; Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute; Torture, constituting a crime against humanity in violation of article 7(1)(f) of the Rome Statute; Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute;
The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali In the case which concerns the government's supporters' actions against the opposition, Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali were charged with five counts of crimes against humanity. They were accused of committing these crimes as indirect co-perpetrators at locations including Kisumu, Kibera, Nakuru and Naivasha:
Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute; Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute; Rape and other forms of sexual violence, constituting a crime against humanity in violation of article 7(1)(g) of the Rome Statute; Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute; Inhumane acts, constituting a crime against humanity in violation of article 7(1)(k) of the Rome Statute;
Pre-trial phase
Pre-Trial Chamber II ruled that there were reasonable grounds to believe that William Ruto and Henry Kosgey were criminally responsible as indirect co-perpetrators of the crimes outlined in counts 1, 2 and 4, but in the case of Joshua Sang it ruled that his involvement was not essential to the commission of the crimes and so only ruled that there were grounds to believe he otherwise contributed to the crimes. The Chamber rejected the request by the Prosecutor to include the charge of torture in count 3. In the case of Kenyatta, Muthaura and Ali the Chamber ruled that there were reasonable grounds to believe that Uhuru Kenyatta and Francis Muthaura were guilty as indirect co-perpetrators of the crimes of which they were accused but in the case of Mohammed Ali, the Chamber ruled that his contribution was not essential to the commission of the crimes and so he was charged with having otherwise contributed.