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A slap in the face for the ICC

April 6, 2016

The acquittal of Kenya’s Deputy President William Ruto has dented the court’s image and strengthened critics. Ruto is free but victims of the 2007 violence are still waiting for justice writes DW’s Chrispin Mwakideu.

Lawyer Karim Khan and Kenya's Deputy President William Ruto.
Image: Reuters

Even before the judges at the International Criminal Court (ICC) dropped the charges on Kenya's Deputy President William Samoei Ruto and radio presenter Joshua Arap Sang, most Kenyans had lost interest in the case. Apart from Ruto's and Sang's Kalenjin community, ordinary citizens were obviously not spending sleepless nights, wondering what would happen if Ruto is found guilty. Should they have cared? Actually, yes. Here was a man (second only to the president) being accused of committing crimes against humanity in what has become one of Kenya's darkest chapters since it gained independence from Britain in 1963.

Following the disputed 2007 election, more than 1,000 people were killed, some of them in gruesome ways, women were raped, thousands of houses were torched by marauding youths forcing more than 600,000 people to flee their homes. In a matter of days, Kenya slid into utter chaos. But since the nation is of strategic importance to the region, the international community came rushing in to save the day. Peace returned, the killings stopped, but the scars remained and the search for justice began.

Search for truth and justice

It was the mediation efforts by Kofi Annan that finally ushered in a government of national unity based on a 50-50 agreement. The coalition government was led by President Mwai Kibaki and his rival Raila Odinga as prime minister. Annan also proposed a number of reforms as means of finding justice and addressing the root causes of the violence. He initiated the establishment of a Commission of Inquiry also known as the Waki Commission to look into the post-election violence.

The Waki Commission had recommended that a special local tribunal be created to try the alleged perpetrators. While President Kibaki and Prime Minister Odinga supported the idea of a local tribunal, for whatever reason - key members of Kibaki's and Raila's respective camps - Uhuru Kenyatta and William Ruto were totally opposed to it.

'Don't be vague, let's go to The Hague'

Efforts by the two principals were drowned by a majority in parliament led by none other than what would later become 'Uhuruto' (an alliance between Uhuru and Ruto). "Don't be vague, let's go to The Hague" became a catch phrase. A bill tabled in parliament to set up that local tribunal was promptly defeated. Having no options left, Kofi Annan handed over the Waki Commission's sealed envelope which contained a list of suspects to then ICC chief prosecutor, Luis Moreno Ocampo.

Chrispin Mwakideu, DW editor and radio host.
Chrispin Mwakideu is an editor and presenter at the DW English Africa service

On December 15, 2010, the list containing the infamous Ocampo six was unveiled. The six alleged masterminds of Kenya's 2007-08 post election violence were listed as Kenya's then suspended Education Minister William Ruto, Finance Minister Uhuru Kenyatta, Industrialization Minister Henry Kosgey, secretary to the cabinet Francis Kirimi Muthaura, former police chief Mohammed Hussein Ali and radio executive Joshua Arap Sang.

It is worth noting that until this time, the hunger and need for justice for the victims of the post election violence was at an all time high. For many Kenyans, the ICC was the best placed institution to deal with such a crucial case involving some of the nation's most powerful. Not only that, the ICC was seen by many as a deterrent for any leader who may wish to incite people to commit violence again.

The Kenyan government under Uhuruto would later go to great lengths to have the case at the ICC dismissed, even bringing the matter up for voting at the UN Security Council with no success. It is not far-fetched to say that the so-called 'shuttle diplomacy' undertaken by the Kenyan government at that time was mostly motivated by the need for political survival rather than the quest for real justice. Both Uhuru and Ruto were seen as heirs apparent and their predicament at the Hague had brought not only the two of them together but they had consequently managed to unite their Kikuyu and Kalenjin ethnic groups behind what they said was a politically motivated case. It is no secret that one of the underlying causes of the 2007-08 bloodshed was the animosity between ethnic groups. Kenyans have a history of voting along tribal lines and that has not changed.

Weak case

But then all of a sudden, the cases started falling apart. On September 2011, The ICC failed to confirm the charges against Ali, Muthaura and Kosgey, the Ocampo six were down to three. While on the case, Ocampo had bitterly complained that there was a lot of witness intimidation and meddling by the government. Complaints that were later magnified by his successor, Fatou Bensouda.

And then on December 5, 2015, ICC judges dropped the charges against President Uhuru Kenyatta citing insufficient evidence. Some legal experts had previously warned that trying a sitting president would not be easy, but even that not withstanding, the evidence by the witnesses was what made the case even weaker. Most of them chose not to attend the hearings, others recounted their testimony, and some went as far as saying they had been coached to incriminate the suspects. In a nutshell, Ocampo had done a shoddy job of putting up the case.

The acquittal of Ruto and Sang by the ICC has ruined the court's reputation at a time when Kenya is preparing for elections in August 2017. And if all the Ocampo six have now been cleared of committing crimes against humanity, it means the real masterminds of the 2007-08 post election violence are still out there. What's more, that confidence that Kenyans and most of other African states had in the ICC is no longer there. Sadly, for the victims of post election violence in Kenya, the search for justice is back to square one.