Ocampo’s ICC secret dossier

By Biketi Kikechi and Stephen Makabila

Details of what Luis Moreno-Ocampo presented to the three judges hearing Kenya’s case at The Hague can today be revealed.

He says he believes the violence was planned well before the elections and fanned by politicians.

In a 41-page document, the International Criminal Court Chief Prosecutor gives reasons why key suspects in the Waki Commission’s ‘secret envelope’ should be brought to account.

Mr Moreno-Ocampo’s dossier shows that he has names of persons and groups that were involved, places of alleged commission of crimes and the time they were committed. The report is the clearest indication yet that the ICC prosecutor has a watertight case against the three suspects he is zeroing in on.

He says the report will be provided to lawyers defending the suspects, legal representatives of the victims and legal representatives of the applicants.

Details of the report came to light on a day the Chief Mediator Kofi Annan met Prime Minister Raila Odinga in Nairobi and advised that the Government seeks to set up a local mechanism to try suspects of the violence that almost brought Kenya to its knees.

Moreno-Ocampo presented Kenya’s case to the ICC pre-trial chambers and is expecting to get the green light to proceed with gathering of evidence.

International Criminal Court Chief Prosecutor Luis Moreno-Ocampo

His dossier delves into evidence contained in eight other reports compiled by several agencies capturing events prior and after the eruption of the violence.

Crimes against humanity

He told the court he believes crimes against humanity were committed, in particular murder, rape and other forms of sexual violence, forcible transfer of population and other inhumane acts.

According to Government figures 1,220 people were killed during the violence that rocked the country after the 2007 elections.

Moreno-Ocampo says President Kibaki and Raila had conceded that there is no prospect that there will be any domestic prosecution of the suspects.

He says in his report to the court that both ODM and PNU politicians facilitated violence. He avers that available information indicates organised groups associated with members or supporters of the two main parties deliberately targeted civilians who were perceived to be sympathetic to rival groups.

Moreno-Ocampo said efforts by Imenti Central MP Gitobu Imanyara to create a local tribunal through a Bill in Parliament had failed because of lack of quorum. Yesterday, the Minister for Justice Mutula Kilonzo said suspects of the violence have been working to defeat the Motion.

In his report, the ICC prosecutor also cited inflammatory radio broadcasts and hate speech by political leaders as key causes of the violence.

In the report presented before Presiding Judge Ekaterina Trendafilova, and two other Judges Hans-Peter Kaul and Cuno Tarfusser in the Hague on November 28, Moreno-Ocampo indicated the violence might have been planned during the pre-election campaign.

"Human Rights Watch, for example, gathered information indicating that local leaders and ODM mobilisers arranged frequent meetings following the election to organise, direct and facilitate the violence," he says.

He added emails and text messages were also reportedly used to disseminate hate messages against particular candidates and other communities before the election.

"Inflammatory radio broadcasts as well as alleged hate speech in the Rift Valley province during the electoral campaign are indicators of organised attacks," reads his report.

Incite violence

According to Moreno-Ocampo, activities during the campaign period were part of a strategy to incite subsequent violence that affected 136 constituencies spread in six out of the country’s eight provinces.

"Ethnically motivated hate speech, inflammatory rhetoric and incitement by members of leading political parties were reportedly a recurring feature of the pre-election campaign," reads his report to the ICC judges.

The prosecutor submitted that such inflammatory statements continued even after the election, as leaflets quickly appeared telling members of opposing communities to leave Rift Valley, Coast and Nyanza provinces.

"Information on the systematic nature of the attacks include the reported violence in the Burnt Forest settlement South of Eldoret town, where militia simultaneously attacked and burned 1,320 houses in which 5,000 persons lived," writes Ocampo.

He said youths involved in attacks in Rift Valley were transported to the locations of attacks by lorries and were allegedly paid to carry out the raids. "Funds were allegedly provided by members of the political and business establishment of the North-Rift," he adds. He further indicates that counter attacks were under-taken by other parties’ supporters mainly in Nakuru and Naivasha and parts of Western Rift Valley.

"In the town of Naivasha, members of the militia were reportedly paid by local businessmen to attack civilians, being promised money for each kill," he said.

He said the conduct of the attacks required logistical pre-arrangements, and many of the attacks targeted members of specific groups to the exclusion of others.

"The Waki Commission noted that warnings were sometimes issued to the civilian population prior to attacks and a large number of attackers mobilised, often from outside a targeted area," added Moreno-Ocampo.

The ICC chief prosecutor met with President Kibaki and Prime Minister Raila Odinga in Nairobi on November 5, 2009 and requested Government co-operation. Moreno-Ocampo says Parliament did not adopt the Constitution of Kenya Amendment Bill 2009 to establish a Special Tribunal. He says Imenti Central MP Gitobu Imanyara initiated another Bill on August 29, 2009 based on the premise that those bearing greatest responsibility be prosecuted at the ICC.

He recounts all the efforts made to create the tribunal including a stakeholders meeting held in Geneva on March 30 this year.

The prosecutor says he received a Government delegation led by Justice Minister Mutula Kilonzo in Netherlands in July where it was agreed impunity was not an option.

Victims’ safety

The delegation agreed to provide information on measures put in place to ensure safety of victims and witnesses and modalities for conducting national investigations.

Information was also to be provided on steps taken to prosecute those responsible through the special tribunal or other judicial mechanisms.

In the alternative, the Kenya Government was expected to refer the situation to the Prosecutor in accordance with Article 14 of the Rome Statute. The Government has since reneged on this promise.