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Civil society locks horns with ICC over trust fund

COUNTIES
By Nzau Musau | October 26th 2014
post election violence 2008

A man goes past a burning shop at Chebirate trading centre with his belonginG. PIC BY TITUS MUNALA

Nairobi; Kenya: Civil society groups in Kenya have taken issue with the International Criminal Court (ICC) over the delayed assistance to victims of the 2007-08 post-election violence.

A group of more than 20 civil society organisations has complained that the ICC’s Trust Fund for Victims (TFV) has grown indifferent to the plight of Kenyans affected by the violence. These victims are entitled to financial reparations running into millions of shillings, they said. Their concerns are contained in a letter dated June 22 sent to TFV director Pieter de Baan and released to The Standard on Sunday on Wednesday. The group says there has been no development since their June letter.

“They have elected to discriminate against the Kenyan victims. Their constant excuse is that it remains unsafe to operate in Kenya yet they are a neutral party. Besides, other court organs operate here,” a member of the group said.

The TFV was set up by the Rome Statute to assist victims who have been wronged after the conclusion of ICC cases and to offer general assistance using voluntary contributions. Currently, the fund has a total of Sh2.1 billion in its kitty and is operating in northern Uganda and the Democratic Republic of Congo.

The Kenyan cases at the ICC began in 2009. Five years later, and with the two cases at trial stage, the Fund has not set base in Kenya. In July last year, the Fund assured Kituo Cha Sheria that it would carry out a “victims’ assessment” in the first quarter of 2014. This, however, never came to pass.

Critical juncture

The group’s concerns are exacerbated by recent pronouncements from judges that one of the cases (against President Kenyatta) has reached a “critical juncture.”

“The TFV is under an obligation to act expeditiously to provide adequate and prompt reparations for harm suffered by the victims. The TFV has failed to meet this obligation,” the letter to the fund reads.

“This situation is further aggravated by the fact that, at the national level, little has been done to date to restore the lives of victims. There is no meaningful development towards reparations as Kenya still lacks a reparations policy.”

The groups include Kituo Cha Sheria, Kenya Human Rights Commission (KHRC), International Commission of Jurists-Kenya (ICJ), Kenyans for Peace Truth and Justice, Journalists for Justice and Naivasha Peace Development Initiative.

“We have since had a meeting with the director of the fund but not much has changed. He promised the assessment would begin in the second half of the year but I am only hearing that an assessment of sorts has started. I haven’t seen any activity myself,” KHRC’s Esther Waweru said.

In the letter, the group complained that since the opening of the Kenyan cases before the ICC, “there has been no tangible effort” by the TFV to commence operations in the country. This is despite the fact that the TFV does not depend on a conviction to commence its operations in a situation country.

The civil society groups complained that there have been no substantive consultations with victims, victims’ groups or civil society organisations towards the promised commencement of an assessment process.

“Further we would like to express our concerns about the lack of communication on the progress of the Trust Fund’s deliberations and planning. This absence of information is being perceived by the victims as inactivity and even indifference on the part of the Trust Fund,” they said.

The group said a vast majority of victims are in urgent need of physical and psychological rehabilitation and material support to rebuild their lives and regain their dignity.

Abandoned victims

They fear that if reparations are awarded at the conclusion of the cases, only a certain number of victims may benefit, and even then, those who benefit will have to wait for a long time to access the funds.

“Victims in Kenya have waited for an inordinate amount of time for the Trust Fund to begin its operations,” the group said in the letter.

The civil society groups asked the Fund to do four things; give a comprehensive update on efforts to undertake the promised assessment, commence operations in Kenya under Article 79 of the Rome Statute, design, develop and implement appropriate assistance programmes and provide regular information and updates to the victims on the progress of the operations.

“A timely intervention by the Trust Fund can contribute to mitigating the current polarisation between case and situation victims which has developed due to the different treatment granted by the court,” the group wrote. “This has created the perception that the ICC has abandoned the victims in Kenya. An intervention by the Trust Fund can renew hope and trust in the ICC process that has been largely politicised, leading to a decline in the support of the court.”

Case victims are those participating in the ongoing cases while situation victims are those who suffered harm but for one reason or another are not participating in the case.

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