KENYA: Frustration Over Limits of ICC Charges

• by Robbie Corey-Boulet (nairobi)
• Friday, April 29, 2011
• Inter Press Service

Judges ruled in March that ICC Chief Prosecutor Luis Moreno-Ocampo had failed to demonstrate that high-profile extrajudicial killings by police in the western city of Kisumu as well as killings, injuries and rapes carried out in the Nairobi slum of Kibera were part of a state policy involving three suspects linked to President Mwai Kibaki’s Party of National Unity.

The suspects - Finance Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and former Police Commissioner Mohammed Hussein Ali - are currently facing crimes against humanity charges of murder, forcible transfer of population, rape, persecution and other inhumane acts related to violence in the Rift Valley. In a separate case, three other suspects are also facing charges of murder, forcible transfer of population and persecution.

The March ruling said Ocampo’s evidence provided 'reasonable grounds to believe' that police 'used excessive force, in particular live ammunition,' against residents of Kisumu, resulting in more than 60 deaths. Judges also said there was evidence indicating police 'raided the slums of Kibera' multiple times, and that crimes were also committed there by the Mungiki criminal gang.

But because they were not satisfied with the connection between these crimes and a state policy or the suspects themselves, judges dismissed charges in both locations.

Credibility damaged

Stella Ndirangu, legal officer for the International Commission of Jurists in Kenya, said a failure to pursue charges related to Kibera would come as a shock to most victims there, especially in light of the fact that the slum had featured prominently in Ocampo’s initial filings.

'If there’s no form of accountability, the angle of trying to deter future occurrences sort of gets lost,' Ndirangu said.

Consolata Ngugi, 49, a resident of Kibera since 1994, was raped by three male supporters of Raila Odinga - who lost out on the presidency and is now prime minister - the day after the election was called in Kibaki’s favor. She said the ICC process, which she initially supported, would be meaningless if judges did not weigh evidence of crimes committed in the slum.

'The court is treating Kibera as a different place, but violence also took place here,' she said. 'If the ICC is going to abandon Kibera, it’s a clear sign to Kibera residents that however much you kill one another the law will never catch up with you.'

The government acknowledged 1,220 deaths nationwide during the crisis, which lasted until late February 2008, according to Ocampo’s initial request to launch an investigation. But Pamela Akwede, head of the human rights office at Kibera’s Christ the King Catholic Church, said she believes more than 1,000 killings took place in Kibera alone.

Akwede said the exclusion of Kibera from the case against Kenyatta, Muthaura and Ali would amount to a final betrayal for victims who have already been mistreated by politicians and the police in the wake of the violence.

Whereas candidates were eager to rally support in the slum in the run-up to the December 2007 vote, they have made themselves scarce ever since, Akwede said.

And although police interviewed victims of the post-election violence, they invariably concluded that there was insufficient evidence to pursue criminal charges. Some even told rape victims such as Ngugi 'that they must have enjoyed' being assaulted, Akwede said.

'The poor people here have been used by the government of Kenya,' Akwede said, adding that she now discourages women from agreeing to interviews with police investigators.

Ngugi also accused the police and local courts of abdicating their responsibility to investigate the violence. She said she has identified her attackers, but that police have refused to FIND and arrest them, instead telling her to call in if she happens to see them.

'These men are drunkards,' Ngugi said, referring to her attackers. 'They stay in pubs and nightclubs around here. I cannot go standing near bars and nightclubs every day in those areas searching for the people who destroyed my life.'

The ICJ’s Ndirangu said victims in Kisumu would be similarly disappointed if the case against Kenyatta, Muthaura and Ali focused only on the Rift Valley.

'With Kisumu, most of those events were captured on camera, especially when police were using force, so it’s unimaginable that [the perpetrators] would go scot-free,' she said.

Jelena Vukasinovic, associate legal outreach officer at the ICC, said Ocampo can present new evidence in advance of confirmation of charges hearings scheduled for September.

Ndirangu said that during a meeting earlier this month in The Hague, Ocampo urged civil society groups to forward relevant material to his office. 'The message was that if you’ve got additional evidence, he’s ready to receive it,' she recalled.

© Inter Press Service (2011) — All Rights ReservedOriginal source: Inter Press Service

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