Kenya and the ICC Setting the Record Straight

Posted by on 10th December 2010

Categories:   2007 Elections 2012 Elections

By Mzalendo Contributor Moreen Majiwa (@mmajiwa on Twitter).

It’s a bit more than year since Luis Moreno Ocampo, the Chief Prosecutor of the International Criminal Court, sought permission from a pre-trial chamber of three ICC judges to open an investigation into the country’s 2007-2008 post-election violence.

On March 31, 2010 a majority of the pre-trial chamber of International Criminal Court judges approved the Prosecutor’s request. This made Kenya the International Criminal Court’s fifth investigation, and the first investigation begun by the prosecutor acting on his own initiative.

Last week the Prosecutor announced that he has completed his investigations. In short he has identified the most serious incidents falling under the ICC’s jurisdiction as well as the persons most culpable for these incidents.  The incidents he’s finished investigating?

In his “Request for authorization for investigation” the Prosecutor stated that there was a reasonable basis to believe that crimes against humanity were committed during the post-election violence of 2007/2008, in particular crimes of murder, rape and sexual violence, deportation and forcible transfer of population and other inhumane acts.

Now that the investigations are done the Prosecutor has announced that he is ready to take the next step and will be requesting the International Court to issue summons against 6 high level officials on December 15th 2010. Since the announcement the government seems to be doing a U-turn on its promise to cooperate with the Court.

The AG has stated that the Prosecutor has no cause of action against Kenya as the crimes committed do not qualify as crimes against humanity. MPs plan to table a motion to revoke Kenya’s assent to the Rome Statute and to deny the Court jurisdiction over Kenya. MP for Chepalungu Isaac Rutto, will be presenting the motion to Parliament on Wednesday next week. MP William Ruto who initially supported the ICC investigation in lieu of a local tribunal, has filed an urgent application to block the prosecutor from making an application to issue summons against the 6 Kenyans.

However all this is moot, because during the first stage a majority of the ICC judges already ruled that a cause of action against Kenya exists as the information supplied by the prosecutor provided a reasonable basis to believe that crimes against humanity had been committed in Kenya and that all criteria for the exercise of the Court’s jurisdiction was satisfied.

Further by ratifying the Rome Statute in 2005 the government effectively agreed that after this date the ICC could investigate, try and prosecute individuals accused of crimes under its jurisdiction committed in Kenya. Even more important Article 2 (6) of the new constitution makes the Rome Statute a part of Kenya’s law and amending this constitutional provision to create an exception would require a referendum, see article 255 and 256 of the Constitution.

So legally speaking the die has been cast and the case must go on, unless the court finds that there is insufficient evidence to link the 6 persons to the crimes.

1 Comment

  • by Kenya: Kenya and the ICC: Setting the record straight · Global Voices on 10th December 2010

    [...] Why is the Kenyan government doing a u-turn on its promise to cooperate with the International Criminal Court?: “Now that the investigations are done the Prosecutor has announced that he is ready to take the next step and will be requesting the International Court to issue summons against 6 high level officials on December 15th 2010.” [...]