The notice of withdrawal of charges against President Uhuru Kenyatta filed today by the Prosecutor of the International Criminal Court brings to an end an important and sad chapter in the search for justice for victims for post-election violence. The circumstances under which the case has been withdrawn raise grave concerns both for the victims of the crimes for which Kenyatta was charged, who have waited for justice for seven years, as well as for victims of future atrocity crimes who may see similar state obstructionism as Kenya has so effectively deployed to thwart the search for justice and the fight against impunity.
Uhuru Kenyatta has frequently asserted that he was innocent of any wrong-doing and welcomed the opportunity to clear his name in court. However, the circumstances under which the charges against him have been withdrawn – based on alleged witness intimidation and lack of cooperation by the Government of Kenya – rather than vindicating him, have left many questions hanging over his role in post-election violence. It is noteworthy that the Prosecutor’s withdrawal is without prejudice to the possibility of bringing new charges against Mr. Kenyatta at a later date.
KPTJ recalls that the crimes for which Kenyatta was charged – retaliatory violence against perceived ODM supporters – constituted just one of four patterns of violence that were perpetrated during post-election violence. The other three forms of violence – spontaneous attacks, planned violence against perceived PNU supporters and excessive use of police force, together with sexual and gender-based violence that occurred across the board – remain largely un-addressed. There have been minimal domestic prosecutions of mid and lower level perpetrators and little support to restore the livelihoods of those who lost everything.
The primary responsibility to prosecute perpetrators of mass violence and to repair the harm done to the victims always lies with the state, with the ICC coming in only as a Court of last resort where the state is unable or unwilling to play this role. The Prosecutor’s decision to withdraw the charges against Kenyatta therefore does not absolve the Kenyan government of this responsibility.
In view of the foregoing, Kenyans for Peace with Truth and Justice (KPTJ):
1. Urges the Government of Kenya to investigate and prosecute all alleged perpetrators of post-election violence.
2. Urges the Government of Kenya to conduct a fresh audit of victims of post-election violence with a view to creating a reliable register for purposes of giving reparations to all victims of post-election violence.
3. Urges the ICC Trust Fund for Victims to urgently conduct the long-overdue assessment of the situation in Kenya to offer much needed assistance to victims of post-election violence.
4. Urges the ICC Prosecutor to keep the file on Post-Election Violence in Kenya open with a view to starting or continuing investigations and initiating new prosecutions in the event of new evidence coming to light.
The International Criminal Court was established to ensure that that the most serious crimes of concern to the international community as a whole must not go unpunished and to respond to the legitimate demands of victims for justice. The outcome of the Kenyatta case offers the Court and supporters of justice for atrocity crimes an important opportunity for reflection and soul searching on what lessons can be learned to ensure that the powerful do not use their positions to thwart the quest for justice for victims of mass violence.