At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.
Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.
Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.
A Contradiction in the Mandate of the AU Open Ended Committee
Peace, Security and Stability
A look at State Cooperation
Taking stock of the experience in the Kenya cases
UN Reform vs ICC Reform
This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.
 Assembly/AU/Dec.616 (XXVII)
 Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html
 Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711
“When it comes to this issue of corruption that has been at the centre stage of Kenyan public debate, it has frustrated me as President. And I would say why: because the pressure is on me to do something about corruption” (…) “I then sit back and ask: show me an administration, since independence that has tackled corruption like I have done. I have removed everybody who has ever been named or touched upon on the issue of corruption” (…) “I have done my part, at great expense – political. I have told them to step aside, and they have done it; whether guilty or innocent, I suspend them for three months until investigations are concluded” (…) “By the way that pronouncement by itself is unconstitutional. I have no power to suspend them” (…) ”I wish there was a way guilty persons could be charged, but nothing! We set up a multi-agency so that we can coordinate our affairs, still no movement” (…) ““I have taken the actions that I can take within the Constitution. I have given all agencies resources to fight corruption, and I challenge any agency to come out and say that I haven’t given them the resources. I stand accused that the executive is not doing its work. What do you want me to do?” – Uhuru Kenyatta at the State House at the ‘Anti-Corruption & Accountability Summit’ on the 18th October.
Well, Honourable His Excellency President Uhuru Kenyatta of Kenya, your under fire for corruption scandals, something that has been rampant during your administration. There been all kind of corruption scandals all the way into the Judiciary and the Supreme Court, into businesses and even in Parliament. Senators, Governors, Members of Parliament, investors and all kind of people, even Cabinet Secretaries has been burning in your period as the Executive.
This isn’t just about the Kenya Ethics and Anti-Corruption Commission (EACC). This isn’t about that, though that is a tool used by the President for his legitimate fight, even as it been an unused tool since John Githongo we’re “fired” in 2005 by the Mwai Kibaki administration. Since then the EACC has just been a puppet for the Governments of Kenya.
So if the President Kenyatta can complain about the dockworkers and the administration in Mombasa for their corrupt behaviour as they trade the goods through the dock, before it gets loaded on land. There been as long as I remember been the first people the Kenyan Presidents hurried to accuse, but for some reason never sack civil servants running the Mombasa Docks, which for me sounds weird.
We are now in the midst of the unravelling National Youth Scandal (NYS) where billions of shillings went into forged companies of the ones running the NYS fund. That is blowing up and making the CS Sicily Kariuki looking silly, while the main architect hopes to go scotch free like her fellow comrades Josephine Kabura.
This together with a mix-up at the Ministry of Health, that has been diverting funds as well, CS Cleopa Maliu has tried to explain the situation, but the companies that been implicated has done what they can wash their hands clean of the dirty acts of the MOH. The Tax-payers 5 billion shillings just vanished into thin-air and made little progress of the sick. That Mobile Health Stations we’re actually rebranded containers and other projects from the Ministry we’re flawed has further damaged the reputations of the Ministry and their Economic Policies.
If this two wasn’t enough in the times of the Kenyatta Presidency the “Chickengate” and the Independent Boundaries and Electoral Commission (IEBC) has been sacked for their corrupt trades, where they used deliveries to add “chickens” on the recites so they could get extra commissioned for making sure By-Elections happen orderly, even using foreign producers of ballots to skim-off tax-payers monies. This within bound of the current leadership and their hard-work against corruption!
It’s not like Uhuru Kenyatta is earning fortunes on the system today with his giant corporation like Brookside Diaries, that got business with Sameer Agricultural And Livestock Limited in Uganda, also owns a huge stake at the Inyange Industries in Rwanda. He has a stake in the Banque Internationale Pour l’Afrique au Congo (BIAC) in the Democratic Republic of Congo. This together with the valuable Heritage Hotels in Kenya; other corporations are the Commercial Bank of Africa (CBA) that has subsidiaries outside of Kenya as well. In media he owns the Mediamax Group: which controls the K24, Kameme FM and People Daily.
When you owns these businesses and knows the practises well, than he doesn’t see it fit to rock-the-boat. Just keep business as usual as his corporations are growing in size nationally and internationally. This while the government practises are weaker and mediocre, the business aspect is rising. Why should he work against his own corporations, which wouldn’t be a good look as the owner?
Well, at the same time the government has added debt, but also had another questionable Corruption scandal – the Eurobond we’re by September 2016 there we’re actually 215 billion shillings that was unaccounted for. That has never really been explained, even if the International Monetary Fund that been discussing with the Central Bank of Kenya (CBK) and CS Henry Rotich tried to explain it through an all of a sudden transaction to JP Morgan Chase Account in New York in January 2016, that 2 years after the release of the questionable transactions and sale of the Eurobonds.
So I have just these issues that I remember right now, concerning the Jubilee and Kenyatta Government of the present day. With these kind of activity doesn’t make feel like the EACC or any kind of Anti-Graft activity has ever occurred. There are so many more like the Athletics Organizations concerning the Nike Apparel and Agreement between them and NOCK for the Rio Summer Olympics of 2016. So the runners and such we’re not supported as they we’re supposed to do, as the Government and Selected Officials we’re selling the clothes instead of giving it to the Athletes. That is just another one of the corruption scandals in his term.
I do not get the feeling that President Kenyatta has done what he could, what he should, but what he would prefer, to keep it at this present time with business as usual. Not caring about the cases, not interfering, not creating laws or amend government bodies to get more power to intervene on the corrupt behaviour. The President has kept it day-to-day and not tried to stop it. Because it is his loyal troops who are eating of the tax-payers plate. They are bending the laws and accountability to secure funding of the made-up corporations that got tenders by the NYS scandal and so on.
President Kenyatta, if you cared; I am if you’re really serious why does the amount cases keep piling and why is so many people walking scotch free after stealing, thieving and embezzling away government funds? Why do this people walk the streets without any prosecutions or trials of their cases? Why? What does it take to make them guilty of blue-collar crimes?
The real chicken thief is in the nearest sell of Eldoret or Kisii. But if they we’re suits sophisticated stealing like the Anglo-Leasing deal with the Kenya Defence Force than the men and woman walk talking to Kidero or any other governor with a grin. This is the same happing in your time and under your permission Mr. President. Time to act upon that!! If you meant the words you uttered out of your mouth in the State House in October this year. Peace.
A Statement Issued by the Kenyan CSOs on November 1, 2016
Since independence, Kenyan public has been treated to a cocktail of abominable theft, plunder, squander and waste of public resources, while the institutions tasked with the mandate to probe and deal with the said scandals have repeatedly sanctified the same. Bailed as the most corrupt and unaccountable administration in Kenya’s political history so far, the Jubilee regime’s 4 years in power has been characterized by rampant, reckless and mindless looting and misappropriation of state coffers.
The situation in the country remains so grave and dire that the official Auditor General’s report for 2015 found that just 1% of Kenya government spending and a quarter of the entire 1.6 trillion shillings budget was properly accounted for. Current reports indicate that Kenya loses approximately 600Billion shillings out of its annual budget of 2 trillion (close to 30%) through wanton theft and waste. Imagine what this amount could do in supporting health care for the poor, provision of quality basic education, clean water or employment for our youth?
Specifically, the Kenyan CSOs note with concern the following systemic and vicious failures of the political establishments, both at the national and county levels: That as noted by John Githongo, a prominent anti-corruption crusader, “corruption in Kenya has deepened and widened since President Uhuru Kenyatta came to power in 2013”.
It’s in response to the president’s admission of helplessness, his inability to act, and the failure by the different state agencies to admit responsibility in the midst of wanton theft of state resources, that the Kenyan Civil Society is calling a national mass demonstration to demand for urgent and systematic actions against mega corruption in Kenya.
We have planned sustained political actions to ensure zero tolerance to and increased accountability for public theft in Kenya.
“Cord leader Raila Odinga has welcomed the joint parliamentary select committee’s recommendations, terming them the beginning of a journey to a free and fair poll next year, whose outcome will reflect the wishes of the electorate. Odinga has however proposed that president Uhuru Kenyatta consults with him in the nomination of new IEBC commissioners, just like he was involved in the appointment of the outgoing electoral body bosses, by former president Mwai Kibaki in the grand coalition government” (Kenya Citizen TV, 2016)
The Independent Electoral Boundaries Commission of Kenya is now at a standstill after months of hustling from the Opposition against the Commission and their men. The band of brothers run by the Commission Isaack Hassan have been under fire and besieged as their fate have been questioned by ‘Chickengate’ their involvement in the questionable Burundi third term election in 2015 of Pierre Nkurunziza and all the other issues entangled in the current leadership.
Therefore the reasoning for staying while the Jubilee government under President Uhuru Kenyatta and DP William Ruto could by law keep the men, even as the trust between the IEBC and the people where in tatters. Still, the viable approach through laws and constitution could let them keep the men in charge and run another election in 2017. Though the perception on the rigging and the embezzlement of government funds would be stamped on the foreheads of the commission as they legacy are filled with CHICKENS. The chickens and facilitation of the ones who bought the ballots and needed electoral equipment for by-elections and other elections who earned extra monies on the transactions; these people shouldn’t be there and they can be compromised by the ability to facilitated to give a counted number instead of real cast ballots, as long as the Commissioner would be given a brown envelope.
The Coalition for Reform and Democracy (CORD) Kenya leader and ODM head Raila Odinga wrote today: “Yesterday, those discussions culminated in a very encouraging development—the expression by the IEBC commissioners of their willingness to resign to allow a new team take over in time for 2017 elections. I wish to congratulate Senators Kiraitu Murungi and James Orengo for the steady leadership to the Joint Select Committee of Parliament that has ensured harmonious and mature discussions which has produced this commendable progress” (…) “I thank all the members of Parliament serving in this committee for putting aside partisan politics and focusing on what really matters at this moment in the history of our country which is the need to have a credible electoral body that enjoys the broad support of a great majority of Kenyans ahead of 2017 elections” (…) “Once the talks began, it quickly became clear that CORD and Jubilee have more in common on the IEBC and how to conduct future elections. This is usually what happens when we choose to talk to each other and not at each other and when we give dialogue a chance” (twitlonger, 04.08.2016).
Also this we’re reported:
“The audit report, which also formed basis of a petition forwarded to the Justice and Legal Affairs Committee by Mr Barasa Nyakuri, blamed the commissioners led by Mr Hassan and part of the secretariat for irregular procurement of the Biometric Voter Registration (BVR) kits for the 2013 elections” (… ) ”Mr Hassan, who has gone to court seeking to have his name expunged from the report, is also alleged to have single sourced lawyers handling the 2013 presidential election petition, in which over Sh380 million was paid to three prominent lawyers” (…) “The select committee has summoned the IEBC commissioners and senior directors at the commission to present their defence before it today, as it works towards finalizing its report within 30 days as contained in the Motion approved by both Houses, which also set its terms of reference” (…) “The committee’s report could be last nail on the coffin of careers of electoral chiefs mentioned adversely in corruption allegations, including the chickengate scandal, and throw a lifeline to those found not to have engaged in fleecing the taxpayers of millions of shillings” (Njagi, John – ‘Team to probe threats on auditor over IEBC report’ 01.08.2016, Nation.co.ke).
As the reports coming in and the mentality of the change is of guards are coming. IEBC had to be changed before the General Election 2017, as the standstill between the opposition and the ruling regime. Still, with these negotiations, that has happen after the dozen of violent demonstrations because of the police brutality. In this crisis the judgement from the Police and then CS Nkaissery defending their misbehaviour towards the citizens and members of opposition was not just.
Paying Commissioner for thieving:
“Treasury Cabinet Secretary Henry Rotich said the Government will use cash from the Contingency Fund to pay off the commissioners. “We have contingency funds for such unforeseen expenditure if it does occur,” Mr Rotich told the parliamentary select committee on electoral reforms” (…) “This means that the nine, each earning Sh1.2 million per month, will get Sh372,000 for the five years served, translating to Sh1.86 million per person and Sh16.7 million for the team. The current commissioners are Issack Hassan (chairman), Lillian Mahiri-Zaja (vice chairperson), Albert Bwire, Kule Godana, Yusuf Nzibo, Abdullahi Sharawe, Thomas Letangule, Muthoni Wangai and Mohamed Alawi” (Michira, Moses – ‘IEBC bosses will take home Sh180m 04.08.2016 Link: http://www.standardmedia.co.ke/article/2000210764/iebc-bosses-will-take-home-sh180m ).
The Kenyan Parliament must be proud of how they are promising payment and salaries towards the former Electoral Commissioners who we’re embezzling funds. They are initially getting paid for stealing funds from government and even not being trusted with delivering trustworthy elections. Free and Fair elections under their leadership we’re under question as they actions we’re bent for the ruling regime and as their financial adjustments we’re done to create bigger wallets from the ones signing contracts for the IEBC. That shouldn’t be paid to silence and to get rid of them. As John Githongo we’re sent away from addressing corruption for being a whistleblower, the men behind the IEBC scandal shouldn’t be paid, but be sent to court and express their guilt or be free-men for not having evidence of the illegal transaction.
The CORD had grievances with the Electoral procedure and the Electoral laws, not only the Commissioners who could be bought and secure funds for themselves as the Kenyan Constitutional Referendum or the OKOA we’re shut down by the same Electoral Commission under Commissioner Isaack Hassan. The other just happens to follow his lead and create an atmosphere where this is justifiable.
Who will take over for former-IEBC Commissioners are not easy to foresee as the negotiations and the agreement between CORD and Jubilee is not something a man can find the answers on the skyline. The next IEBC men and woman have to be people that the current MPs and Parliamentarians trusts as they will both parties agree to their acts as a Commission and their turn for holding the election. The reality will be that no matter what they do and who get picked they will be scrutinized and should be accountable. As the previous ones tried to keep people in the shadow and keep the monies encircled for themselves instead of trying to reasonable and honourable men who did their duty for their country. They tried to quick fix their own pockets instead of just doing their job and being content. Isaack Hassan and his band of brothers will be remembered for their chickens, not for their work or the ballots casted in the elections. Peace.