The termination of the William Ruto/Joshua Sang case by the International Criminal Court is yet another sad milestone in the long search for justice for victims of post-election violence. They have waited in vain for almost a decade to know authoritatively what happened to them and their loved ones.
In accordance with the presumption of innocence, it is usually procedurally correct to terminate a case where there is insufficient evidence to convict. However, the accused in both Kenya cases at the ICC have neither been absolved nor acquitted: the cases have collapsed as a result of contamination of evidence through systematic victim/witness interference and an orchestrated political and diplomatic campaign by the Kenyan government at the behest of suspects of international crimes to intimidate and discredit the Court. As the court pointedly stated in its decision, “there was a troubling incidence of witness interference and political meddling.”
Due to lack of political will, there have been no domestic proceedings against high and mid -level perpetrators and few lower level perpetrators have been brought to justice. Victim assistance and reparations have been inadequate, and were they have existed, have been haphazard and discriminatory.
All this has left victims of the post-election violence frustrated, not knowing where else to turn for justice.
Going forward, the ICC and all those who support international criminal justice must embark on deep soul-searching to reflect on the lessons learnt from the Kenyan cases and how to deliver justice to victims of atrocity crimes, especially where suspects use state power to shield themselves from accountability.
The Office of the Prosecutor itself must share part of the responsibility for the collapse of the Kenyan cases for under-investing in documentary and forensic evidence and over-relying on witnesses who could be tampered with, bribed, threatened or disappeared. The Court must also ask itself whether it could not have moved with greater speed to try the cases before the key suspects seized state power which they then used to shield themselves from accountability.
The Assembly of State Parties must shoulder part of the responsibility for allowing the Kenya government to perennially bully and intimidate the Court, undermine the independence of the judges and the Prosecutor, and the integrity of the judicial proceedings.
KPTJ also recommends the following:
- We urge the Office of the Prosecutor to redouble its efforts in investigating allegations of victim interference with a view to indicting, under Article 70 of the Rome Statute, all the perpetrators and those who obstructed
- We once again call on the Trust Fund for Victims to conduct the long-awaited assessment into the Kenyan situation with a view to offering the PEV victims assistance in lieu of reparations.
- We continue to urge the Kenyan government to investigate and prosecute perpetrators of post-election violence and to ensure that all PEV victims eventually get justice.
- We urge the Kenya government to ensure that the obstacles that have so far prevented the extradition of the three suspects already indicted for witness tampering to the ICC to face trial are removed without further delay.
- We urge the Kenya government to urgently put in place accountable, transparent and equitable mechanisms to pay reparations to PEV victims to enable them to rebuild their lives.
As civil society we vow to relentlessly continue to wage the struggle against impunity and injustice. We will continue to speak up for the 1,133 Kenyans whose voices were permanently silenced by the PEV, the 650,000 who were displaced, the hundreds that were brutally raped and forcibly circumcised, and the thousands who lost their livelihoods.
Finally, we remind all the perpetrators of post-election violence, regardless of their current status in society or the power they currently enjoy, that history does not forget. The examples of Augusto Pinochet, Alberto Fujimori and Hissène Habré will continue to shine a light in the darkness for the victims and those who support them. They will find courage in the knowledge that justice delayed is not always justice denied and that one day, their tormentors too will be called to account.