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Kenya Charts New Territory for the ICC

The prosecutor of the International Criminal Court today issued summonses for six individuals alleged to have directed atrocities following Kenya’s disputed 2007 elections. In all, some 1,100 people were killed because of their ethnic identity or political affiliation.  600,000 were displaced. Hundreds were raped.

The most notorious incident involved the burning to death of 50 people who sought refuge inside a church. From a contemporaneus New York Times story:

On Monday night, several hundred Kikuyus barricaded themselves inside the Kenya Assemblies of God church in Kiambaa, a small village near the town of Eldoret. The next morning, a rowdy mob showed up.

According to witnesses, the mob was mostly Kalenjins, Luhyas and Luos, Mr. Odinga’s tribe, which makes up about 13 percent of the population. They overran Kikuyu guards in front of the church and then pulled out cans of gasoline. There were no police officers around, witnesses said, and no water to put the fire out.

The prosecutor says he is collecting evidence that strongly suggests this kind of mob violence was not random, but planned and directed by the political elite.  Specifically, he has issued a summons for each of the following six people–three from each side of the disputed presidential election.

1. William Samoei Ruto – currently: Minister of Higher Education, Science and Technology (suspended), MP for Eldoret North and during the PEV, MP for Eldoret North. The Prosecution considers that he was one of the principal planners and organizers of crimes against PNU supporters;

2. Henry Kiprono Kosgey - currently: Minister of Industrialization, MP for Tinderet Constituency, ODM Chairman and during the PEV: MP for Tinderet. The Prosecution considers that he was one of the principal planners and organizers of crimes against PNU supporters; and

3. Joshua Arap Sang - currently Head of Operations, KASS FM and during the PEV: Radio broadcaster. The Prosecution considers that he was one of the principal planners and organizers of crimes against PNU supporters.

And in the second Prosecution case, by:

4. Francis Kirimi Muthaura - during the PEV and to date: Head of the Public Service and Secretary to the Cabinet and Chairman of the National Security Advisory Committee. The Prosecution considers that he authorized the Police to use excessive force against ODM supporters and to facilitate attacks against ODM supporters.

5. Uhuru Muigai Kenyatta - currently: Deputy Prime Minister and Minister of Finance. The Prosecution considers that during the PEV he helped to mobilize the Mungiki criminal organization to attack ODM supporters; and

6. Mohamed Hussein Ali – currently: Chief Executive of the Postal Corporation of Kenya and during the PEV he was Commissioner of the Kenya Police. The Prosecution considers that during the PEV he authorized the use of excessive force against ODM supporters and facilitated attacks against ODM supporters.

What sets this case apart from each of the four existing situations before the ICC is that this is the first time that the prosecutor has used his discretion to forward an investigation.  In Uganda, the DRC, and the Central African Republic the government explicitly invited the ICC to launch investigations of war crimes. In Sudan, the Security Council ordered the prosecutor to look into the case.

Kenya is a member of the International Criminal Court — it ratified the Rome Statute treaty in 2005.   This means that the court’s jurisdiction applies in Kenya.  The thing is, this is uncharted territory for the ICC.  Never before has an ICC member state’s ruling elite been targeted for potential prosecution.

So, will the individuals named answer the summonses? If not, and should the ICC issue actual indictments, will Kenyan authorities honor their obligations to the ICC and turn in the suspects for trial?   The answer to the latter question may very well decide the fate of the ICC.  After all, if ICC member states don’t cooperate with the court, you can’t expect anyone to be terribly fearful of its bite.

This is one to watch closely.


  • Isaac_f52002

    am much as the mentioned deserve to be heard, kenya is still at liberty nto decide whether to cooperate or Not. Not that kenyans love the ICC but want justice done to the victims

  • Isaac_f52002

    am much as the mentioned deserve to be heard, kenya is still at liberty nto decide whether to cooperate or Not. Not that kenyans love the ICC but want justice done to the victims

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