Kenyan civil society campaigners said at the United Nations on Friday that International Criminal Court member states should consider imposing sanctions on Kenya if ICC judges rule that the government is not cooperating in the case involving President Uhuru Kenyatta.
The three activists speaking at a news conference at UN headquarters suggested that such action may be needed to ensure that justice is done for those victimised in the post-election violence nearly seven years ago. The government has blocked efforts by ICC Chief Prosecutor Fatou Bensouda to obtain records that could serve as evidence against President Kenyatta, the activists charged.
They have been presenting that view in meetings in recent days with the UN missions of nations that are parties to the treaty establishing the ICC.
And they have been warning the UN missions that even if the ICC judges conclude that Kenya is not cooperating, the case against President Kenyatta could still languish unless the ICC’s Assembly of State Parties somehow compels the government to provide the records sought by the prosecutor. At present, “there is no mechanism for compelling such cooperation,” noted Haron Ndubi, a member of Kenyans for Peace with Truth and Justice.
He and the other two Kenyans addressing reporters did not express confidence that the case will even reach the point of being referred to the Assembly of State Parties. “It is highly likely that the case will collapse,” said Abdul Noormohamed, legal officer for the Open Society Initiative for East Africa. ICC Chief Prosecutor Fatou Bensouda should not be blamed for such an outcome, added Stella Ndirangu, a program manager for the International Commission of Jurists-Kenya.
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Ms Bensouda lacks the ability to force the government to hand over documents she believes may contain evidence against President Kenyatta, Ms Ndirangu said. The prosecutor’s task has been further complicated by the death, disappearance or recanting of testimony of some prosecution witnesses in the case, Ms Ndirangu commented.
She noted that there is another option open to ICC trial judges other than terminating the case or referring it to the Assembly of State Parties. The judges could also dismiss the case “without prejudice,” meaning that the prosecution could be revived if new evidence arises, Ms Ndirangu said. Whatever The Hague court decides, the activists vowed that they will continue working in Kenya to deliver justice for the election violence victims.
Civil society groups have brought two cases to Kenyan courts. One involves a Constitutional issue regarding those displaced by the 2007-2008 violence. The other focuses on eight victims of sexual violence, “both male and female,” Ms Ndirangu said.
In matters involving international criminal law, there is no time limit on liability, Mr Noormohamed noted. He cited the example of cases related to the World War II Nazi Holocaust in which “it can take 50, 60 years, but one day you see justice done.” He pleaded for attention to the plight of the thousands of Kenyans who were killed, raped or displaced during the 2007-2008 mayhem. “They’re poor, they’re indigent, no one gives them a voice,” Mr Noormohamed said.
He noted that more than 100 Kenyan MPs accompanied President Kenyatta to The Hague on Wednesday, “but nobody spoke for those who died.” “Our situation is such that the perpetrators have become the victims,” Mr Noormohamed remarked.
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