Implications of ICC ruling on post poll violence victims, Ocampo Six

By Priscilla Nyokabi

Victims of the 2007/2008 post-election violence (PEV) are waiting anxiously for the decision of the Pre- Trial Chamber Two of the International Criminal Court (ICC). The ruling is expected next week. The Bench of three Judges will confirm or reject the charges brought against the ‘Ocampo Six’ by the Office of the Prosecutor (OTP). The court’s decision may have implications for national peace, justice and reconciliation.

However, one hopes the ICC decision will not trigger fresh violence. The ICC process is the only criminal accountability process that has taken place since Kenya started experiencing post- election violence in 1992.

Thousands of victims of the 2007/2008 post-election violence are waiting eagerly whether their right to justice will be further pursued in The Hague. They are waiting with concern on how the decision will affect their lives and particularly their security.

Victims have a right to justice, a right to truth, a right to reparation and a right to assistance. None of these rights has been satisfied adequately.

Victims in the ICC proceedings

A person who has suffered harm as result of a crime under the jurisdiction of the court has the right to participate in the proceedings and to apply for reparations. However, once recognised as victims related to one of the two Kenyan cases, a victim can give his/her views to the court through a legal representative.

During the confirmation of charges hearings for the case The Prosecutor vs. Ruto et al. A number of 327 victims were represented by the Common Legal Representative for Victim Ms Sureta Chana. In the case The Prosecutor vs. Muthaura et al. Counsel Morris Anyah was giving the Chamber the view of 233 then recognised victims of the case.

The Government, ICC and lack of capacities within the civil society to fill this gap exclude many victims from legal representation due to absence of outreach programmes. Most victims do not understand why the crime that was committed against them is not included in the charges of the ICC. Kibera and Kisumu victims are such examples.

Possible outcome of the ICC decision and its potential impacts

There are five possible scenarios with the focus on William Ruto in Case One and Uhuru Kenyatta in Case Two as they have the biggest influence and supporters.

1. The charges against all suspects are confirmed (full confirmation)

The confirmation of the charges in both cases would satisfy victims from all ethnic groups. Politically, such a decision is likely to strengthen the alliance between the Kikuyu and the Kalenjin ahead of the presidential election. Ruto and Uhuru would be accused and their political prospects are inevitably tied together. Full confirmation has the potential to lead to tensions and to trigger violence. Though it is very difficult to predict what will happen, it is safe to say that the Luo community will be most in danger. This will highly depend on the action/reaction of Ruto, Uhuru, their allies as well as the community elders to the situation and the preparedness of the security forces in the respective hot spots.

2. All suspects are discharged and all charges are not confirmed

If the charges are dropped, the victims and those who fight impunity in the country would be very disappointed. The suspects, particularly Ruto and Uhuru, will be politically strengthened and will benefit from this triumph in their election campaign. Widespread violent reactions are not to be feared, but violence could incidentally spill over when the followers of the suspects celebrate their heroes. However, this outcome would not break the cursed cycle of election violence in Kenya.

3. Only the charges against Mr William Ruto’s Case are confirmed, not Mr Uhuru Kenyatta

Thousands of victims of violations perpetrated by the Mungiki or the police forces will lose their perspective to see justice. They will be frustrated because other than those victims attacked by ODM supporters they will be dropped out of the justice process. Victims who were attacked as perceived PNU supporters (mostly Kikuyu, but also Luhya, Kamba, Kisii or Kalenjin) can file their applications to the court to participate in the Trial stage. Political alliances will be re-organised. Tensions will arise.

If violence occurs then it will target mainly the Luo community, to a lesser extent the Kikuyu community in the Rift Valley. Again, the likelihood of violence will highly depend on the action/reaction of Ruto and his supporters as well as the community elders and the preparedness of the security forces in the respective hot spots.

4. Only the charges against Mr Uhuru Kenyatta’s case are confirmed, not Mr Ruto’s Case

Thousands of victims, who were attacked as perceived PNU supporters, by Kalenjin warriors, will be disappointed and afraid of re-occurrence of displacement. They will be frustrated because they will be dropped out of the justice process. Victims who were attacked as perceived ODM supporters (mostly Luo and Luhya) can file their applications to the court to participate in the Trial stage. Political alliances will shift. Isolated violent incidents cannot be excluded.

5. Decision is postponed

The Judges could ask the OTP to submit further evidence or to investigate further. This may pose no challenges or threats of violence to the victims.

And the Government needs to be reminded to meet its obligation to investigate crimes and to take appropriate measures against the perpetrators. The creation of a domestic accountability mechanism is overdue. If charges are dropped against one or all suspects at the ICC, theoretically there is still the possibility to investigate the alleged crimes under ordinary criminal law in Kenya.

The State Parties and the Registry of the ICC need to adequately fund the field office in Nairobi and the fieldwork of the court and the Common Legal Representatives in Kenya in order to reach out to all victims of PEV.

Kenyans need to conduct themselves peacefully no matter the outcome of the ICC ruling. The leaders should exercise restraint and preach tolerance and peaceful co-existence. This is especially critical in Rift Valley where the temperatures are already rising. The police must ensure security for all, the victims and their families as the country awaits the ICC ruling.

The writer is an Executive Director Kituo Cha Sheria