Justice Through Truth And Transparency: Protecting The Rights
Of Survivors Of Kenya’s Post-Election Violence
ARTICLE 19 welcomes the request for summonses made by the Prosecutor of the International Criminal
Court (ICC) as a significant step towards justice for victims of the 2007-2008 post-election violence in
Kenya. During one of the most violent periods in the country’s history, over 1,100 lost their lives, 3,500
were injured, 600,000 were forcibly displaced and hundreds of women and girls were raped. ARTICLE
19 urges the Kenyan state authorities to support the ICC process and to ensure that domestic processes of
accountability for the post-election violence properly reflect the principles of transparency, the free flow
of information and the “right to truth.”
On 15 December 2010, the Prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo,
requested the ICC to issue summonses ordering six prominent Kenyan citizens, including members of the
current Kenyan government, to appear before the ICC to face justice for grave international crimes
committed during the post-election violence that took place in Kenya between December 2007 and
March 2008. All six men deny the charges and have vowed to clear their names. If the judges of Pre-
Trial Chamber II of the ICC determine that there are reasonable grounds to believe that the six
individuals identified committed the alleged crimes, they will decide on the most appropriate way to
ensure their appearance before the ICC.
The ICC Prosecutor’s request has prompted a range of reactions, particularly within Kenya itself, on the
role of the ICC and the ability of the Kenyan authorities to provide a justice mechanism through a special
tribunal on the post-election violence. Some commentators have speculated that the naming of the six
individuals by the ICC prosecutor could signal the end of the “culture of impunity” in Kenya. There have
been renewed calls for the establishment of a local “special tribunal” to investigate and prosecute other
individuals involved in the PEV, as recommended by the Commission of Inquiry Into Post-Election
Violence (CIPEV) in 2008. Meanwhile, many political figures have criticised the ICC process, with some
even supporting a parliamentary motion for Kenya’s immediate withdrawal from the Rome Statute on
the ICC and to “ any links, cooperation and assistance” to the ICC– a proposal that was declared
inadmissible on legal and constitutional grounds by the Deputy Speaker on 21 December 2010. At the
same time, surveys conducted by Synovate and Infotrack Research before and after the ICC Prosecutor’s
announcement indicate that the ICC process enjoys overwhelming public support locally.
In ARTICLE 19’s view, the rights of victims of the crimes committed during the post-election violence
can only be properly fulfilled through complementary domestic and international criminal justice
mechanisms: we note that while the ICC Prosecutor has targeted the individuals who he believes bear the
greatest responsibility for those crimes, the Kenyan state authorities remain under an ongoing obligation
to ensure justice for the victims of other perpetrators. Transparency and the free flow of information are
critical for both international and domestic justice mechanisms. Moreover, the “right to truth”, a
developing concept in international law, obliges the Kenyan state to provide information to victims, their
families and society as a whole about the circumstances of the gross human rights violations that took
place during the post-election violence.
In accordance with international human rights law and standards on the right to information, fair trial,
life and on the prohibition of torture and inhuman or degrading treatment – as contained in the
International Covenant on Civil and Political Rights and the Basic Principles and Guidelines on the Right
to A Remedy And Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law – ARTICLE 19 recommends the following:
• The Kenyan state organs – the executive, legislature and the judiciary – should fully support the ICC
process, in connection with the six named individuals in particular, and fully cooperate with the ICC
Prosecutor and the ICC;
• The Kenyan legislature should refrain from adopting any legislation that seeks to withdraw Kenya from
the Rome Statute, repeals the International Crimes Act or undermines Article 2(5) of the Kenyan
Constitution which states that the general rules of international law shall form part of the law of Kenya;
• The Kenyan legislature should establish, as soon as possible and through an open, transparent and
participatory process involving civil society, a special tribunal on the post-election violence;
• The Kenyan legislature should adopt legislation on the right to information to enable state and non-state
actors to have full access to information which may lead to arrest, detention and prosecution of persons
responsible for the crimes committed during the post-election violence.