‘Frankly the victims have been trying to get justice in Kenya, and failed. They tried to get justice from the ICC, and they failed. It is a sad day for them.’
These were the words of Fergal Gaynor, the International Criminal Court (ICC) lawyer representing the victims of Kenya’s 2007/8 post-election violence.
He was speaking after the ICC Prosecutor withdrew charges against Kenyan President Uhuru Kenyatta on 3 December. Kenyatta was yet to go to trial, following several delays.
This sentiment was widely shared by non-governmental organisations, analysts and victim support groups. Other victims, however, may still see some justice.
In all the hubbub and consternation surrounding Kenyatta’s case, many people seem to have forgotten that there are two other Kenyans on trial for their role in the violence, which killed more than 1 000 people. Still in the dock are William Ruto, Kenya’s deputy president, and Joshua arap Sang, a former journalist.
Already, Ruto and Sang’s trial has progressed further than Kenyatta’s did
Ruto is charged as an indirect co-perpetrator, and Sang for his alleged involvement in the commission of several crimes against humanity, including murder, persecution, and the forcible deportation. Their trial is already underway. Without going into the messy specifics, there were at least two sides involved in orchestrating the violence.
Kenyatta was supposedly on one side, while Ruto and Sang were allegedly on the other. It is the alleged victims of Kenyatta’s side that have been denied the chance to hear the president explain himself in court. For the rest, there’s still hope.
Already, Ruto and Sang’s trial has progressed further than Kenyatta’s did. In fact, the prosecution is on the verge of resting its case as court adjourns for its recess, having presented 27 witnesses and plenty of damning evidence. Take, for instance, the testimony of Witness 800 (most ICC witnesses remain anonymous for their own safety), who said that Ruto and Sang were both instrumental in inciting tensions ahead of the violence. One example was Ruto’s alleged call to ‘uproot or eat’ the ‘white mushrooms’ in a specific area. This, the witness explained, was understood to refer to Kenyans of Kikuyu ethnicity associated with the Akorino sect whose followers wear white turbans for religious purposes.
Why was Kenyatta able to get his charges dropped, while Ruto and Sang’s case has proceeded?
When they do present their defence next year, Ruto and Sang will be forced to account for their actions. Kenyatta, in contrast, was able to use the full force of the Kenyan state to frustrate the prosecution’s attempts to investigate. This raises an interesting question: why was Kenyatta able to get his charges dropped, while Ruto and Sang’s case has proceeded?
The answer to this question lies in the nature of the crimes they are alleged to have committed. Because they supposedly planned it longer, and involved far more people, there is a lot more evidence and witnesses implicating Ruto and Sang. Prosecutors contended that Kenyatta’s situation, by comparison, involved only a small amount of people over a much shorter period of time, making it much more difficult to gather evidence.
As such, the withdrawal of charges against Kenyatta is unlikely to affect Ruto and Sang’s case – in the courtroom, at least. Outside of the courtroom, it’s a different story.
The first issue is whether Kenya will continue its massive diplomatic campaign to change and reform the ICC (which has not always been its official position; it was in Kenya’s Parliament, remember, that the ‘Don’t be vague, go to The Hague’ campaign to get the ICC involved began). Since 2011, the country has argued repeatedly that the court is biased against Africans. More recently, it has argued that the Kenyan accused are innocent victims. Now that Kenyatta is off the hook, however, will he continue to push this message on behalf of Ruto? It must not be forgotten that although the pair are currently allied in a coalition of convenience, Kenyatta and Ruto were (and possibly still are) political rivals.
Early indications suggest that there will be no letup in the diplomatic offensive. ISS Researcher Allan Ngari, who was in New York last week for the thirteenth session of the Assembly of States Parties to the Rome Statute (the treaty which established the ICC), said that Kenya was still pushing hard for discussions on the conduct of the court.
But does Kenyatta, now a free man, still need Ruto?
‘Kenya was quick to utilise its speaking time at the plenary sessions as well as at closed meetings to spread its vociferous message of questioning the conduct of the court in the cases related to its nationals, despite the fact that this was not on the ASP agenda,’ he said. ‘It is possible that Kenya will now focus its energies on getting the Ruto case (and interestingly that of Sang too) to fail.’
The second issue is the coalition of convenience. During the post-election violence, Kenyatta and Ruto were political opponents. This changed when the ICC confirmed criminal charges against both of them. Realising they were stronger together than apart, they formed the Jubilee Alliance, which went on to win Kenya’s 2013 election, playing the victimisation card as a powerful campaign tool. But does Kenyatta, now a free man, still need Ruto?
Yes, according to Kenyatta himself. ‘Those who sleep and wake up thinking about ICC and the collapse of Jubilee should forget. I am telling them in broad daylight to forget. Their agenda is petty. We have a bigger agenda for Kenya that we want to fulfill. We will manage,’ the president said, speaking at a church service alongside Ruto shortly after the withdrawal of charges against him.
Kenyatta also promised to seek justice for the victims of the post-election violence through some kind of domestic justice process. We have heard this promise before, however. It’s been seven years since the atrocities were committed and despite the many possible cases, only a handful has been prosecuted domestically. Thus despite the collapse of the Kenyatta case at the ICC, the court still remains the best hope for justice, even if it’s only for some of the victims.
Simon Allison, ISS Consultant