The Honorable Judge Sylvia Steiner
President, Pre-Trial Division
International Criminal Court
The Hague, Netherlands
Re: Kenya PEV Cases
Dear Hon. Judge Sylvia Steiner:
I am a Kenyan currently residing in the United States and write to you in hopes I can share my thoughts with you, which I also believe are the views of many other Kenyans both in the Diaspora and at home.
In ideal circumstances, you are called upon as the honorable judges you are to dispassionately apply the law to the facts established by the record before you or those proven at trial.
The case now pending before you involving the six suspects from Kenya, otherwise commonly referred to in Kenya as the “Ocampo Six,” does not present itself as one where you can dispassionately apply the law to the facts established by the record before you or at trial, which means decisions you make about the cases must be informed from not just the law and facts but also drawing from other considerations before rendering decisions such as to whether to allow the case to proceed to trial, and if so, what the outcome at trial must be.
The preamble to the Rome Statue under which this Court lives and breathes, states in part, that “all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time.”
What is equally true but not reflected in the preamble, and therefore not an integral part of ICC jurisprudence, is the fact that there are idiosyncratic factors peculiar to any given culture not present in any other and therefore must be taken into consideration in initiating and adjudicating cases before this honorable court separate and apart from those that cross all cultures.
Tribalism, a vice and stable feature in Kenya is one such an example.
To be sure, tribalism exists in other countries, including Rwanda where this Court has and continues to play a key role in seeking justice for the victims of genocide in that country that occurred back in 1994.
However, even though that violence was primarily between two tribes, the Hutus and Tutsis, the level of hatred between the two tribes and underlying reasons for the hatred and ultimately reasons for the genocide is different from the hate or underlying reasons for what happened in Kenya in early 2008 and the reason the Ocampo Six cases are before you.
It is important to understand that distinction for no outcome can be rendered with respect to the Ocampo Six that would be deemed justice or otherwise accepted by all concerned, unless these underlying reasons are taken into consideration.
Rather than going into a detailed exposition to analyze and/or explain these underlying reasons, it is sufficient to say, and I believe there is enough in the record to reach this conclusion, that the dynamics that resulted in the post-election violence in Kenya (PEV) are three dimensional:
- There was evidence the elections that took place in Kenya in 2007 were rigged and the winner at the presidential level was not sworn in as president but the incumbent who lost, was.
- The incumbent president and more so his close people utilizing state machinery ensured that his being sworn as president despite the glaring evidence he had not won the elections ruled the day.
- This created an environment where violence took place not to exact revenge for the perceived wrong-doers in executing the flawed elections, but to settle old scores primarily between the Kalenjin and Kikuyus and those scores have everything to do with land and not the elections of 2007, even though politics is at the core of why they arose in the first place and this goes back to the dawn of our country’s independence in 1964.
I note above that the Ocampo Six is not your typical case to dispassionately apply the law to known or proven facts.
The reason I say this is because of the third dimension above and that is, as long as the land issue is not addressed to the satisfaction of these two communities, no outcome other than the non-trial or acquittal of both Uhuru Kenyatta and William Ruto is going to be seen as fair or just in their respective communities while the trial or conviction of either and acquittal of the other will be seen as unjust in the eyes of the community of the one convicted and therefore foment even more tribal animosity as between these two communities made worse only by the chipping in of the rest of the country’s communities likely to ally with one or the other as a matter of political and tribal necessity, especially if such acquittal or conviction occurs in the heat of the campaign period for the elections to be held in the country later on this year.
This is obviously a dilemma that you must resolve in the national interest of Kenya and, given where things are today, that certainly must be committing the cases to trial, to at least get the story right and either convict both of these individuals or acquit both.
The rest of the suspects are basically irrelevant as you can send them all to the gallows and you will not hear even as blip from anyone other than perhaps their relatives and friends.
Uhuru Kenyatta and William Ruto are the face of ICC; with their fate, so goes their communities but the same cannot be said about the rest of the suspects many don’t even know who they are.
Not confirming the charges against the two, namely, Kenyatta and Ruto, or acquitting both will leave the matter in status quo until the communities themselves successfully tackle the issue with the help of the national government, led by the next president to be elected later this year.
Such an outcome would not change the fact that the very prosecution of these Ocampo Six has forever changed Kenya in that we are unlikely to see anything even remotely close to what happened in 2008 because all Kenyans know we are on a path to ending impunity locally and internationally, ICC is there to ensure no one even attempts to engage in crimes against humanity, let alone genocide.
In this vein, the new government working with Parliament must find a way to compensate PEV victims, including solving the problem of the IDPs and one way I have recommended is to have these suspects tried locally and if no convictions are forthcoming, Parliament should pass laws to allow for civil penalties for those found to have been responsible for PEV.
One would think the very suspects would be readily willing to pay civil penalties under those laws to put an end to this sad chapter in our country’s history than go to jail.
In other words, letting everyone go at this point would not be worse than convicting some but not all, especially as between Uhuru and Ruto.
I therefore hope you take all of this into consideration as you deliberate and decide the way forward in the proceedings against the Ocampo Six and may God grant you the wisdom to do the right thing.
Samuel N. Omwenga, Esq.,
Silver Spring, United States
Cc: Sir Adrian Fulford, President
Trial Division, ICC
 The official then in charge of conducting the elections said after PEV and maintains to this day he doesn’t know who won the elections as president. Other observers say it’s not clear who won but contemporaneous evidence clearly points to someone other than the incumbent winning and some even say in a landslide.