RE: KENYAN GOVERNMENT REQUEST FOR A DEFERRAL OF THE ICC CASES
We, the undersigned Kenyan civil society organizations, write with regard to the Kenyan government’s request for a deferral of the ICC cases.
The organizations listed below have interacted regularly with victims and affected communities and have been engaged with the accountability process in Kenya since the onset of the 2007-2008 post-election violence (PEV).

Given the above, we believe that abandoning the process of accountability would send the wrong signal in Africa and internationally. Kenya and other governments voluntarily ratified and domesticated the Rome Statute which established the International Criminal Court (ICC) in order to stem impunity internationally. The Kenyan cases were initiated by the Waki Commission, which investigated the PEV and recommended the establishment of a Special Tribunal to try perpetrators of crimes against humanity locally, failing which the ICC would be called on to intervene.

Following three failed attempts to establish that tribunal, the intervention of the ICC was triggered by AU mediator Kofi Annan. It is on this basis that the ICC Prosecutor (OTP) exercised proprio motu powers to conduct investigations leading to the indictment of six, now three, Kenyans by the ICC for crimes against humanity. The ICC process in Kenya is thus a Kenyan and African-initiated process. The attached memorandum contains detailed information on the reasons we believe that these cases should NOT be deferred, including:

1. The conditions of Chapter VII of the UN Charter on which a successful request must be based do not apply to Kenya: The prevailing situation in Kenya is suitable for trials against the Head of State and his deputy. The perceived threats to peace and security indicated by the government do not meet the threshold required to invoke Chapter 7 of the UN Charter. Trials against the President and Deputy President do NOT constitute a threat to peace and security in Kenya. The causes of insecurity in parts of Kenya are NOT related to the ICC proceedings. The ICC is the only existing credible deterrent to a repeat of events similar to the PEV on a mass scale.
2. Threats to Kenya’s security are exacerbated by bad governance not by accountability: Terrorism and insecurity in the region occur in a context of impunity, poor governance, corruption and their consequences, which have prevailed in the country for decades. The Annan-brokered agreement prescribed fundamental reform of the security sector, which has been resisted. The recent Westgate tragedy made the dysfunctionality of our security institutions only too clear. Previous terrorist attacks have taken place in Kenya and were not linked to the accountability which must be sought both for the post-election violence and the rule of law concerns which create an enabling environment for terrorism in Kenya. Rather than facilitating improved security, deferral of the cases would further embed impunity and the associated breakdowns that increase opportunities for further such attacks.
3. There have been repeated failures to establish credible local justice mechanisms or to effectively prosecute crimes against humanity: Kenya failed to establish a local justice mechanism to try offences committed during the post-election violence, which would have obviated the need for the Court’s intervention. The failure was caused by a lack of political support for a tribunal by current and past political leadership and their supporters. Five years later, there has been no progress to speak of on prosecution of the post-election violence in Kenya.
4. A deferral will complicate the already endangered situation of witnesses and others: The resulting delay will compound existing delays in the trial of the Kenyan cases and prolong hardships to witnesses, victims and human rights defenders. Witnesses in the Kenya cases have been killed, compromised and intimidated. The Prosecutor regularly reports witness intimidation and bribery. An arrest warrant has recently been issued in connection with this problem. A deferral could place the lives of witnesses at risk.
5. There is still public support for accountability before the ICC: Despite the hostile political climate, more than 50 per cent of the Kenyan population still supports the Court. Ordinary and prominent Kenyans continue to speak out on the need for accountability. Victims and survivors continue to call for both retributive and restorative justice. Official statements about a lack of public support for the ICC process do not reflect these voices.
6. The Kenyan government has yet to establish good faith in its dealings with the ICC: Despite official expressions of support, the Kenyan government has actively sought to undermine the ICC. Attempts to mobilise the African Union membership against the ICC to the extent of proposing a mass withdrawal are the most recent escalation in the campaign against cooperation with the process. The proper and constructive forum to bring forth legitimate grievances on the ICC engagement in Africa is in the Conference of States Parties, of which the African member states form the largest bloc.

The undersigned organizations present this letter and attached memorandum in good faith, with the hope that victims who still bear the suffering and scars of the post-election violence will not be robbed of their chance to secure accountability. Further, the facts are presented to clarify misleading information on the state of peace and security in Kenya.

Click here to download full letter and memorandum – English Version

Click here to download full letter and memorandum – French Version

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