By Human Rights Watch Press
Published April 6, 2016
The absence of convictions before the ICC not only continues a cycle of impunity in Kenya, but is a significant risk factor for future election-related violence.
Human Rights Watch (HRW) faults the International Criminal Court on what it calls ICC’s lack of preparedness “to deal adequately with witness protection.”
The rights body accuses Kenyan authorities of what it calls “Systematic interference with witnesses” that it says has denied justice to the victims of post-December 2007 election violence in the East African country.
That “systematic interference with witnesses” and ICC’s “lack of preparedness”, HRW says, has denied the 1300 people who were killed, 650,000 who were displaced and 1000 who were raped justice in the ICC’s inability “to bring to justice those responsible for Kenyaâ€™s deadly 2007-2008 election violence.”
ICC judges, on April 5, 2016, vacated crimes against humanity charges against Kenya’s Deputy President, William Samoei Ruto, and a former broadcaster, Joshua arap Sang. Given witness interference, ICC “vacated the charges to leave open the possibility that the ICC prosecutor could bring charges again.”
Elizabeth Evenson, senior international justice counsel at Human Rights Watch, says â€œthis case will be remembered for an apparent campaign to corrupt witnesses.â€
Though an ICC pretrial chamber issued arrest warrants for three people â€“ Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett â€“ on charges of witness tampering in the Ruto and Sang case, HRW says, Kenyan authorities have not surrendered the three men to the ICC.
A man claimed by Rutoâ€™s defense as a witness was apparently murdered in late December 2014 or early January 2015. Kenyan authorities have not made any results of investigations into his death public.
â€œPeople who stepped forward to testify in this case put themselves at risk, while bribery and threats interfered with the search for the truth,â€ Evenson said. â€œBarasa, Bett, and Gicheru should be surrendered to the ICC but the allegations against them may only be the tip of the iceberg.â€
The Kenyatta administration has pursued an intense campaign to undermine the ICC, lobbying the African Union and other regional groups, the United Nations Security Council, and the ICC Assembly of States Parties. Kenyaâ€™s leaders failed to prevent and even encouraged hostility toward human rights activists pushing for justice for the post-election violence. The government, for example, did not address hate messages circulated online against activists, even though the identities of some of those behind the blogs were known to authorities.
ICC judges are still to decide whether Kenya breached its obligations as an ICC member country by withholding Uhuru Kenyattaâ€™s financial and other records in the case against him. Even with the closure of this case, pending any appeal, the ICCâ€™s jurisdiction regarding the post-election violence will remain in place.
The absence of convictions before the ICC continues a cycle of impunity in Kenya. Those responsible for political violence in Kenya in 1992 and 1997 escaped justice, and Kenyan authorities broke their promises to hold to account in national trials those responsible for the 2007-2008 post-election violence. Kenyan security forces continue to be implicated in extrajudicial killings, torture, disappearances, and arbitrary detention. Impunity remains a significant risk factor for future election-related violence, Human Rights Watch warns. The next national elections are expected in 2017.
â€œThe Kenyan government set out to undermine the ICC while it turned its back on its responsibilities to provide justice and to stop threats against witnesses and human rights defenders,â€ Evenson said. â€œWhile Ruto and his supporters may celebrate the ICC decision, the victims who have already suffered so much may well now end up without justice or the help they need.â€
The ICC should continue to draw lessons from its work in Kenya. The court appears to have been unprepared to deal adequately with witness protection needs arising out of the Kenya situation. The ICC prosecution reported that the challenges it encountered in its Kenya investigations have prompted strategy changes.
â€œThe ICC was set up to try just these kinds of cases, but it faces many of the same obstacles national investigations confront in cracking entrenched impunity, especially when politically powerful people are involved,â€ Evenson said. â€œStronger investigations, stepped-up witness protection programs, and more consistent international support are the key to doing better for other victims.â€