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Kenya: Latest Statements, Reports and News
16 Sept 2011
Dear all,

Please find below information about recent developments related to the International Criminal Court's (ICC) investigation in Kenya.

On 8 September 2011 the confirmation of charges hearing in the case of The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang ended. The Pre-Trial Chamber II is expected to take a decision within 60 days of the hearing's closing. Judges can confirm the charges and send the case to trial; reject the charges, or request the prosecutor for additional information.The confirmation of charges hearing in the second case in the Kenya situation, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali is scheduled to begin on 21 September 2011.

This message includes the latest statements from members of the Coalition for the International Criminal Court (I), updates from the Open Society Justice Initiative "ICC Kenya monitor" blog (II), related news and opinion (III) and audiovisual resources (IV).

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition,
however, will continue to provide the most up-to-date information about the ICC.

With regards,

CICC Secretariat



1. "Unfinished Business, Closing Gaps in the Selection of ICC Cases," Human Rights Watch report, excerpt from Section VI "Kenya", 15 September 2011,

"…ICC investigations in Kenya—opened in March 2010—have focused on crimes committed in three of the country's eight provinces during violence that followed Kenya's presidential election in December 2007. Violence broke out amidst widespread allegations that the election was rigged in favor of the incumbent president, Mwai Kibaki. Human Rights Watch researchers documented several patterns of abuse, including extrajudicial killings and excessive use of force by the police, and ethnic-based attacks and reprisals by militia groups on both sides of the political divide. Over 1,100 people were killed and at least 650,000 were forced from their homes.

The ICC investigation is the first serious effort to bring to account those responsible for post-election violence in Kenya. Perpetrators of past episodes of election-related
violence—in 1992 and 1997—went unpunished. The ICC investigation in Kenya also
marks the first use of the prosecutor's "proprio motu" power, that is, his power to open an investigation on his own motion with the consent of an ICC pre-trial chamber under article 15 of the Rome Statute. Kenya ratified the Rome Statute in 2005, and, at one point, Kenyan officials committed to try those responsible for the 2007-2008 violence nationally or to refer the situation to the ICC.104 When Kenya's leaders failed to make good on either promise, the ICC prosecutor stepped in.

Investigations have resulted in summonses to appear for six individuals on charges of crimes against humanity: William Samoei Ruto, Henry Kiprono Kosgey, Joshua arap Sang, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali. All six appeared voluntarily in The Hague during initial proceedings in the case in April 2011, and hearings to determine whether to send the cases to trial are expected to be held in September 2011.

The ICC's Kenya investigations have diverged in significant ways from the prosecutor's practice in other situations. First, since this is the prosecutor's first proprio motu investigation, he has had less work to do in Kenya than in the self-referred DRC, Uganda, and CAR situations in order to establish the court's independence from government authorities. Second, the ICC prosecutor seems to have rejected a "sequencing" approach.

The six individuals who have been summoned include those affiliated with both Kibaki's
Party of National Unity (PNU) (Muthaura, Kenyatta, and Ali) and the Orange Democratic
Movement (ODM) (Ruto, Kosgey, and Sang), the political party of Kibaki's rival for the presidency, Raila Odinga. Third, prosecutions have targeted senior leaders from the outset. Ruto and Kosgey are senior ODM members, as well as members of parliament, and, until recently, cabinet ministers in the PNU-ODM coalition government. In the PNU case, Muthaura is the head of the public service and secretary to the cabinet, while Kenyatta is the deputy prime minister and finance minister. Ali was the Kenyan police commissioner at the time of the violence.

By targeting government actors, including two leading contenders in the next presidential elections, Kenyatta and Ruto, the prosecutor reinforced perceptions of independence. And in his even-handed examination of crimes committed on both sides of the political divide, he has reinforced perceptions of impartiality. According to a poll conducted in December 2010, an overwhelming majority (78 percent) of Kenyans supported the ICC's investigations. While this poll was conducted before or at the same time as the prosecutor's December request for summonses, the OTP had stressed from the outset plans to investigate both senior ODM and PNU leaders. This may have contributed to the high level of support recorded at that time. The level of support recorded has since dropped to 51 percent. Those conducting the poll attribute this drop to a number of factors, including public fatigue with the length of proceedings, the failure to bring additional perpetrators to account, and the politicization of the ICC process within Kenya.

Seeing the existing cases through to their completion could help turn the page on Kenya's culture of impunity. But there is still more work for the OTP to do to ensure that the ICC lives up to its responsibilities in Kenya. More investigations are needed to deliver justice for the most serious crimes representative of underlying patterns of ICC crimes and which target those least likely to be held to account domestically. As discussed further below, this means the ICC prosecutor should continue investigations into crimes committed by the Kenyan police during the post-election violence. It also means the ICC prosecutor should consider extending investigations to crimes against humanity and war crimes committed by a local militia and the Kenyan security forces in Mt. Elgon, violence that shares many of the hallmarks of the post-election violence currently under investigation…."

2. "Briefing Paper: ICC Confirmation of Charges Hearings on Kenya Situation," Open Society Justice Initiative, September 2011

"THIS BRIEFING PAPER sets out the background to the pre-trial confirmation of charges hearings at the International Criminal Court against William Samoei Ruto, Henry Kiprono Kosgey, and Joseph Arap Sang, three leading Kenyan figures accused of crimes against humanity arising from the post-election violence of 2007/2008. For more details see our trial monitoring site,

What are the issues the case?

>From December 2007 to January 2008, supporters of rival political parties in Kenya, divided largely along ethnic lines, attacked one another in the wake of a highly controversial presidential election between incumbent Mwai Kibaki, head of the Party of National Unity (PNU), and Raila Odinga, leader of the opposition Orange Democratic Movement (ODM). Murder, rape and other forms of sexual violence, the deportation or forcible transfer of the population, and other inhumane acts characterized a period in which more than 1,220 people were killed, 3,500 were injured and 350,000 were displaced.

In March 2011, the Pre-Trial Chamber II of the ICC issued summonses to appear for six Kenyans named by the prosecutor of the ICC, Luis Moreno-Ocampo—three members each from the ODM and the PNU. The six suspects voluntarily appeared before Pre-Trial Chamber II judges in The Hague on April 7 and 8 2011.

>From September 1 to September 12 2011, Pre-Trial Chamber II will hold the confirmation of charges hearing for the three persons suspected of committing crimes against humanity on behalf of the ODM against supporters of the PNU. They are William Samoei Ruto, Henry Kiprono Kosgey, and Joseph Arap Sang.

Who are the Accused?

Mr. William Samoei Ruto was a senior member of the ODM, formerly a member of parliament from Eldoret (Rift Valley) and minister of higher education, science and technology in the coalition government. Facing allegations of corruption and graft, Mr. Ruto was suspended from public office in October 2010 and was finally dismissed last week.

The prosecutor alleges that Mr. Ruto is responsible as an indirect co-perpetrator (having committed crimes through another person) for the crimes against humanity of murder, forcible transfer, and persecution. More specifically, the prosecutor alleges that Mr. Ruto was the leader of a group of perpetrators who carried out attacks on residents in five areas in the northern part of Kenya`s Rift Valley region between December 2007 and February 2008, and that these crimes were committed against supporters of the PNU as part of a plan to gain power in the Rift Valley province and to punish and drive out PNU supporters.

Mr. Henry Kiprono Kosgey was a senior member of the ODM and a member of parliament from Tinderet (Rift Valley), as well as minister of industrialization in the coalition government. Mr. Kosgey stepped down in January 2011 due to allegations of corruption. The prosecutor has charged Mr. Kosgey as an indirect co-perpetrator for the crimes against humanity of murder, forcible transfer, and persecution, identically to the charges against Mr. Ruto. The prosecutor alleges that Mr. Ruto and Mr. Kosgey prepared

this plan for up to a year before the elections took place, and mobilized the network they had created to execute the attacks as soon as the election results were announced.
Mr. Joseph Arap Sang is currently the head of operations at Kass FM in Nairobi. At the time of the attacks, Mr. Sang was a radio host in Eldoret, Rift Valley Province. The prosecutor alleges that Mr. Sang contributed to the crimes against humanity of murder, forcible transfer and persecution by helping to coordinate the attacks planned by Mr. Ruto and Mr. Kosgey through coded messages in his radio broadcasts.

What happens during a Confirmation of Charges Hearing?

During a confirmation of charges hearing, the Pre-Trial Chamber determines whether there are ―substantial grounds‖ to believe that each suspect committed each of the crimes with which he has been charged. The confirmation of charges hearing is not a trial and it exists to protect persons against wrongful or unfounded charges, and to commit to trial those persons against whom sufficiently compelling charges beyond mere theory or suspicion have been brought. In other words, the hearing distinguishes between those cases that should go to trial and those that should not.
What can we expect from the Hearing?

The hearing will take place from September 1 to 12 2011. The central element of the hearing will be for the prosecutor to present evidence on crimes against humanity and on the individual liability of each of the suspects. The prosecution bears the burden of establishing substantial grounds to believe that each suspect has committed the alleged crimes. The prosecution must establish only a prima facie case, and will not be presenting evidence in full, which is reserved for the actual trial.

The defense plans to argue that the charges against the suspects do not meet the threshold of crimes against humanity, such that they should not be tried at the court. In doing so, the defense will be calling witnesses, two shared by Mr. Ruto and Mr. Sang, and one for Mr. Kosgey.

Additionally, the legal representative of victims will have an opportunity to render both an opening and a closing statement.
Mr. Ruto has applied to waive his right to attend the hearing. He intends to be present the first day of the hearing, and ―will make efforts to be present on any other date that his counsel or the court requires,‖ but has indicated his inability to be present for the ―entirety‖ of the hearing.

What happens after a confirmation of charges hearing?

According to the rules of the court, the judges of the Pre-Trial Chamber have sixty days to make a determination of whether sufficient grounds exist for a case to go to trial. If the judges are satisfied that substantial grounds exist, the chamber will authorize a trial against the suspects, to be conducted by a Trial Chamber. If the Pre-Trial Chamber determines that substantial grounds do not exist, the suspects are exonerated of their charges and the case will not go to trial…."


A project of the Open Society Justice Initiative, the "ICC Kenya Monitor" blog
is part of a broader effort aiming to bring more information about the ICC situation in Kenya closer to the people most affected by the alleged crimes committed during the post-election violence in 2007 and 2008. The purpose of the website is to monitor all stages of the ICC situation in Kenya as well as provide commentary and legal analysis relating to international and national justice efforts.

1. "Kenyatta takes a huge gamble by volunteering to take the stand at the ICC" by Tom Maliti, Kenya Trial Blog, 15 September 2011

2. "If not a "mini-trial", what then? Some reflections on the nature and impact of the confirmation of charges hearings" by Thomas Obel Hansen, ICC Kenya Blog, 13 September 2011“mini-trial”-what-then-some-reflections-on-the-nature-and-impact-of-the-confirmation-of-charges-hearings/

3. "Pre-Trial Chamber Concludes Confirmation of Charges Hearing in Ruto et al Case" by Alpha Sesay, ICC Kenya Monitor, 8 September 2011

4. "Sang's Second Witness Testifies, Says His Organization Did Not Raise Money To Support Violence In Kenya" by Alpha Sesay, ICC Kenya Monitor, 8 September 2011

5. "No united defense strategy of the legal teams for Muthaura, Ali, and Kenyatta" by Tom Maliti, ICC Kenya Monitor, 7 September 2011

6. "What can the ICC do for the victims of Kenya's post election violence?" by Thomas Obel Hansen, ICC Kenya Blog, 6 September 2011’s-post-election-violence/

7. "Joshua Arap Sang is Victim of a Scheme to Implicate William Ruto; Defense Lawyers tell Judges", by Alpha Sesay, ICC Kenya Trial, 6 September 2011

8. "Defense teams for Kosgey and Sang make submissions: do not confirm charges, they say" by Alpha Sesay, ICC Kenya Trial Blog 5 September 2011*

9. "Pre-trial hearings day 3: defense witnesses deny Ruto held meetings to plan attacks" by Tom Maliti, ICC Kenya Trial Blog, 3 September 2011

10. "Confirmation of Charges Hearing Moves Into Second Day" by Alpha Sesay, Kenya Trial Blog, 2 September 2011,

11. "The policy requirement in crimes against humanity: What is it about and why is it important for the ODM case?" by Thomas Obel Hansen, ICC Kenya Trial Blog, August 31, 2011


1. "ICC prosecutor leaves unfinished business" Radio Netherlands, 15 September 2011

2. "Uhuru to take witness stand at ICC hearings" by Olivier Mathenge, Daily Nation, 14 September 2011,

3. "Kenya: Muthaura Seeks to Add New Evidence to ICC" by Nzau Musau, Nzau Musau, 13 September 2011,

4. "Kenya: Ruto in Low-Key Return From ICC" by Mosoku Geoffrey, Nairobi Star, 13 September 2011,

5. "Kenyans hope ICC opens window to justice" Radio Netherlands, 13 September 2011

6. "ICC rejects bid to drop rape charges against Kenyans" by Judie Kaberia, Capital FM News, 13 September 2011,

7. "ICC cases culminate in `unclear' evidences" by Joyce J. Wangui, Africa news, 12 September 2011,

8. "Let us not forget the election violence victims; they too deserve to get justice" by Priscilla Nyokabi Kanyua, Daily Nation, 11 September 2011

9. "Kenya: Kenyan MP risks ICC prosecution over alleged witness intimidation" PANA,
11 September 2011,

10. "Ruto full of praise for lawyers as he arrives from The Hague" Daily nation, 11 September 2011

11. "Kenya: Hackers Steal ICC Witness Emails" by Mathews Ndanyi, Nairobi Star (Nairobi),
10 September 2011

12. "Uhuru says ICC charges are passing cloud" by Munene Kamau, The Standard Media, 10 September 2011

13. "Did Ocampo come off the worse for wear or does he have something up his sleeve?" by Julius Sigei and Jacob Ng'Etich, Daily Nation, 9 September 2011

14. "Of OPVC, VPRS and other acronyms that The Hague is planting in Kenya" by Peter Mwaura, Daily Nation, 9 September 2011

15. "Witness Intimidation Casts Shadow Over Kenya ICC Cases" by Michael Onyiego, Voice of America, 9 September 2011

16. "Kenya: Muthaura Splits From Uhuru At ICC" by Nzau Musau, Nairobi Star (Nairobi), 9 September 2011,

17. "Kenya: Uhuru, Ali Ready for Confirmation Hearings" The Nation (Nairobi), 9 September 2011

18. "Pressure piles on Kibaki to let go Muthaura, Uhuru" by Isaac Ongiri, The Standard, 9 September 2011, piles on Kibaki to let go Muthaura, Uhuru

19. "ICC ruling will be Christmas gift or curse for Ocampo Six in chaos cases" by Eric Shimoli, Daily Nation, 9 September 2011,

20. "ICC warns against intimidating witnesses" by Wangari Kanyongo, KBC, 9 September 2011

21. "It's not over yet, Ocampo may net more suspects" by Evelyn Kwamboka, The Standard, 9 September 2011,'s not over yet, Ocampo may net more suspects

22. "Nairobi lawyer a lone voice in the fight to secure justice for victims" by Eric Shimoli, The Nation, 8 September 2011,

23. "ICC case ends with queries on Raila, Keter" by Judie Kaberia, Capital FM News, 8 September 2011,

24. "Muthaura drops bid to delay Sep 21 hearing" by Judie Kaberia, Capital FM News, 8 September 2011,

25. "Kenya: Ruto Makes Final Submissions" by Macharia Wamugo, Nairobi Star (Nairobi), 8 September 2011,

26. "Lawyers battle claims of Kalenjin 'network'" by Evelyn Kwamboka at The Hague and Vitalis Kimutai in Nairobi, The Standard Media, 8 September 2011 battle claims of Kalenjin 'network'

27. "Kenya: Uhuru Asks ICC to Delay Hearing for Three Months" by Nzau Musau, Nairobi Star (Nairobi), 7 September 2011

28. "Hague court processes keep many guessing on outcome of hearings" by Sekou Owino, Daily Nation, 7 September 2011

30. "Most Kenyans Expect Justice for Post-Election Violence / Majority support The Hague as the trial venue instead of Kenya" by Christine Weigel, GALLUP, 7 September 2011

31. "ICC/RUTO – Defence points at weaknesses of the investigation" Hirondelle News, 7 September 2011,

32. "Sang to call second witness in ICC case" by Judie Kaberia, Capital FM News, 7 September 2011

33. "Sang tears into Ocampo's witnesses" by Judie Kaberia, Capital FM News, 6 September 2011

34. "Ocampo star witness `led 1992 clashes'" by Eric Shimoli and Oliver Mathenge, Daily Nation, 6 September 2011,

35. "Kosgey cuts out Ruto in his Hague defence" by Oliver Mathenge, Daily Nation, 6 September 2011,

36. "Kenya: Kosgey Tells ICC He Was Not At Meetings" by Nzau Musau, Nairobi Star (Nairobi), 6 September 2011

37. "Kenya: To Right Our Wrongs, Elect Good Leaders" by Muriuki Mukurima, Nairobi Star, 6 September 2011,

38. "Kosgey defence narrows on 'witness number six'" by Wahome Thuk, The Standard, 6 September 2011

39. "Kenya: MP's Named By Ocampo Write to ICC Seeking to Clear Their Names." by Oliver Mwenda, Nairobi Star (Nairobi), 6 September 2011

40. "Kenya: The ABC of Confirmation of Charges Hearings At the Hague" by Godfrey Musila, Nairobi Star, 5 September 2011

41. "Kenya: Nyong'o, Karua Praise ICC Hearing" by Maxwell Masava, Nairobi Star, 5 September 2011,

42. "ICC suspects adopt new line of defence" by Standard Team, The Standard, 5 September 2011, suspects adopt new line of defence

43. "Kosgey adopts different strategy in ICC case" by Michael Mumo, Capital FM, 5 September 2011

44. "Suspects drag Raila, Kibaki into chaos case" by Oscar Obonyo, The Standard, 4 September 2011,

45. "Hague: Victims want to see justice done" The East African, 3 September 2011

46. "Language barrier at The Hague hearings" by Wahome Thuku, The Standard Media, 3 September 2011

47. "ICC judges question Kigen conduct" Daily Nation, 3 September 2011

48. "ICC prosecutors: Kenyan suspects created 'mass killing machine'" Afrique Jet News, 3 September 2011

49. "ICC trial should serve as a lesson, Musyimi says" by Lordrick Mayabi, Capital FM, 3 September 2011,

50. "Kenyan ex-ministers gave rewards for violence: prosecutors" by Sara Webb, Reuters, 3 September 2011,

51. "Cherambos takes to the stand at the ICC" by Kendagor Obadiah, KBC, 3 September 2011

52. "Ruto calls two witnesses to rebut Ocampo claims" by Wambui Ndonga, Capital FM, 3 September 2011,

53 "Intimidation of ICC victims, witnesses: Call the bluff" by L. Muthoni Wanyeki, East African, 3 September 2011,

54. "Kenya post poll violence 'carefully planned'" by Jan Hennop, AFP, 3 September 2011

55. "Ruto, Kosgey paid attackers Sh50,000" by Margaret Kalekye, KBC, 2 September 2011

56. "Ruto's lawyer says violence was spontaneous" by Joylene Sing'oei, Standard Media, 2 September 2011's lawyer says violence was spontaneous

57. "Victims want more charges pressed against ICC suspects" by Evelyne Kwamboka, The Standard Media, 2 September 2011 want more charges pressed against ICC suspects

58. "Kenya: Ocampo's Team Makes Presentation" by Diana Madegwa, Nairobi Star (Nairobi), 2 September 2011

59. "Ocampo fights to have Muthaura's lawyer disqualified" by Evelyn Kwamboka, The Standard, 2 September 2011

60. "Defence teams hint on how they plan to demolish Ocampo's evidence" by Evelyne Kwamboka at The Hague and Wahome Thuku in Nairobi, The Standard, 2 September 2011 teams hint on how they plan to demolish Ocampo's evidence

61. "Kenya: ICC Judges Reject Government's Request As Ocampo Six Hearings Start" The Nation (Nairobi), 1 September 2011

62. "Kenya: TV's Dished Out to Aid Villagers Monitor ICC Case" by Jessica Nyaboke, Nairobi Star (Nairobi), 1 September 2011

63. "Kenya: International Criminal Court Judges Hear Victims' Pain" Daily Nation, The Nation (Nairobi), 1 September 2011

64. "ICC: Kenyan ministers face war crimes charges" Radio Netherlands, 1 September 2011

65. "Confirmation of Charges Hearing in the Case of Ruto et al. Begins" by Alpha Sesay, ICC Kenya, 1 September 2011

66. "ICC/Ruto – Debate about 'spontaneity' of post-electoral violences in kenya" Hirondelle, 1 September 2011

67. "Q+A-ICC to decide whether Kenyan suspects should stand trial" Reuters, 1 September 2011

68. "Timeline: Kenya and the International Criminal Court" Reuters, 1 September 2011

69. "Govt shut out of ICC confirmation hearings" by Judie Kaberia, Capital FM News, 1 September 2011,

70. "Suspect says prosecutor failed in Kenya probe" AP, 1 September 2011

71. "Kenyan ex-ministers at ICC over poll violence" Reuters, 1 September 2011

72. "Kenya: First Group of ICC Suspects in the Dock" by Emeka-Mayaka Gekara, The Nation (Nairobi), 31 August 2011,

73. "Kenya: Who Speaks for the Voiceless Citizens?" by Ngunjiri Wambugu, Nairobi Star (Nairobi), 31 August 2011,


1. "Bishop testifies in defense of Joshua Arap Sang," NTVKenya,

2. "Joshua Arap Sang in spirited defense," NTVKenya,

3. "Video clip of Raila, Ruto rally shown," 5 September 2011,

4. "High-profile Kenya suspects face ICC hearing," Al Jazeera Channel,

5. "Kalonzo: Hague trials denting Kenya's image," NTV Kenya,

6. "ICC hearings to resume with more battles," NTVKenya,

7. "Cabinet rejects Ocampo plea to sack Uhuru, Muthaura," NTVKenya,

8. "Kosgey's lawyer rebuts prosecutions' evidence," NTVKenya,

9. "Case The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang: Opening of the confirmation of charges hearing," 1 September 2011, http:/
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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts. Communications to the ICC can be sent to: ICC P.O. box 19519 2500 CM the Hague The Netherlands