Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
declared Kibaki the winner of the Presidential
elections, violence broke out throughout the
country. The violence was characterised by brutal
attacks that appeared to be both coordinated
and spontaneous, and included sexual violence
against both women and men. Victims were
primarily targeted on the basis of their ethnicity,
which was tied specifically to their (perceived)
support for a particular political party, in
particular the ODM or PNU. 787 The police are also
alleged to have engaged in excessive use of force
and extrajudicial killings. 788 Despite the disputed
results, on 30 December 2008, Kibaki was
sworn in as President; the ODM, however, held
the majority of seats in Parliament. Extensive
negotiations took place between the ODM and
the PNU, led by former UN Secretary-General Kofi
Annan, who mediated as Chair of the AU Panel
of Eminent African Personalities. On 28 February
2008, the two parties signed an agreement
on power sharing, which Kibaki signed as
President and Odinga as Prime Minister, thereby
establishing a coalition government between the
ODM and PNU. 789
On 15 December 2010, the Prosecutor filed
two requests for Summonses to Appear, for
six suspects. The first request named William
Samoei Ruto (Ruto), Henry Kiprono Kosgey
(Kosgey), and Joshua Arap Sang (Sang). 790
Ruto, Kosgey and Sang are associated with the
ODM. Ruto is a suspended Minister of Higher
Education, Science and Technology; Kosgey is
Minister of Industrialisation and Chairman of
the ODM; and Sang is the head of operations
at a Kenyan radio station, Kass FM. The second
request named Francis Kirimi Muthaura
(Muthaura), Uhuru Muigai Kenyatta (Kenyatta)
and Mohammed Hussein Ali (Ali). 791 These three
787 ICC-01/09-19-Corr, para 110.
788 ICC-01/09-3/Annex 5, p 417-420.
789 For a more detailed discussion of the political
developments both prior, and subsequent to the signing
of the power sharing agreement between the ODM and
the PNU, see <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 120-122.
790 ICC-01/09-30-RED.
791 ICC-01/09-31-RED.
individuals are aligned with the PNU. Muthaura
is the Head of the Public Service and Secretary
to the Cabinet of Kenya; Kenyatta is the Deputy
Prime Minister and Minister for Finance; and Ali
is currently the Chief Executive of the Kenyan
Postal Corporation and was the Commissioner
of Police during the post-election violence.
Together these two sets of cases represent
leadership positions of both sides of the coalition
Government. On 4 October 2011, the Prosecutor
is reported to have said that he will not bring
any new charges against other individuals for
the post-election violence. 792
Despite there being significant evidence that
gender-based crimes were committed, including
in the materials presented by the Prosecutor
in his request to open an investigation, 793
as the cases move towards trial the existing
charges of gender-based crimes fail to reflect
this. Only one set of charges put forward by the
Prosecutor – that against Muthaura, Kenyatta
and Ali – included charges of gender-based
crimes, namely rape and other forms of sexual
violence 794 and other inhumane acts. 795 In its
decision to issue the Summonses to Appear,
however, the Pre-Trial Chamber significantly
limited the geographical scope of the charges,
by holding that the Prosecutor failed to provide
any evidence substantiating the claim that rape
was committed as part of the attack in Naivasha,
and dismissing in its entirety the charges for
events in Kisumu and Kibera, including charges
of rape, because of a lack of evidence of the
criminal responsibility of the individuals. 796
Moreover, as discussed below, the Chamber
further reduced the charges of sexual violence in
the Summonses. The Prosecutor had requested
a charge of other forms of sexual violence, based
792 ‘I won’t file charges against new suspects: Ocampo’,
Daily Nation, 4 October 2011, available at , last visited on 27 October 2011.
793 <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 122-124.
794 Article 7(1)(g).
795 Article 7(1)(k).
796 ICC-01/09-02/11-1, paras 26 and 32.
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