International Criminal Court (ICC) judges found last week there are substantial grounds to believe prosecutors’ claims that a bloodthirsty ritual saw the leaders of Kenya’s Kalenjin tribe create a criminal network and swear to kill as many rival Kikuyu tribe members as possible. They also believe the country’s Deputy Prime Minister planned the Kikuyu’s revenge attacks.

By Franck Petit and Richard Walker, The Hague

With the ICC accusing four leading figures of ordering murderous “networks” into action, Kenya’s political landscape is being re-drawn. Two of the country’s leaders – finance minister Uhuru Kenyatta and civil service head Francis Muthaura – resigned government posts three days after the ICC indicted them (January 23) for crimes against humanity committed in the violent aftermath of the 27 December 2007 presidential elections. More than 1,000 people died.  

Mungiki gang

ICC judges suspect Deputy PM Kenyatta (also a presidential candidate and political leader of the African nation’s largest tribe, the Kikuyu) of mobilising the Mungiki - a Kikuyu criminal gang. Under his direction, they say, the gang carried out revenge attacks on the Kalenjin and Luo tribes, which were violently protesting the Orange Democratic Movement (ODM)’s lost election.

The ICC chamber believes both Kenyatta and Muthaura could have given the orders to Mungiki leaders to attack  civilians in two towns in the Rift Valley: Nakuru and Naivasha. Kenyatta is believed to have organised the meetings with the Mungiki and to have paid for the operation, while Muthaura is thought to have provided safe passage for the attacks as chairman of the National Security Committee.

These accusations have been aired for the past four years, but the chamber’s recent decision gives them a new credibility. “What has been claimed publicly in Kenya is that there is no legal basis for the charges,” George Kegoro, International Commission of Jurists (Kenya section) told IJT. “What ...[these decisions do] is create a balance to that claim, because...they show serious crimes happened in Kenya and there is reason to believe there is a case to answer.”

On the other side of the fence, the ICC confirmed charges against William Ruto, another presidential aspirant and  radio host Joshua Sang. Judges suspect them of establishing a “network for the sole purpose of committing criminal activities […] in connection with the 2007 presidential elections.” Most of the evidence against Ruto and Sang relies on a handful of witnesses who describe eight “planning meetings” held by Ruto months before the crimes took place.

The first meeting that was accepted by the court was an “oath ceremony” in a milk plant on 15 April 2007. According to a witness, Ruto and other representatives of the Kalenjin community were “sprinkled with dogs’ blood, slaughtered under the supervision of a traditional elder.” That night, Ruto and Sang allegedly took an oath “to kill the Kikuyu mercilessly.”

Police impunity?

Consequently, reads the chamber’s decision, “from 30 December 2007 to 16 January 2008, large gangs of Kalenjin individuals armed with machetes, pangas, bows, arrows, petrol cans and firearms, carried out an attack” against the Kikuyu, the Kamba and the Kisii tribes, all of which were believed to support President Mwai Kibaki’s winning party, the PNU.

ICC judges chose not to confirm charges against two other members of the so-called “Ocampo 6”: former police chief Gen Hussein Ali and Tinderet MP Henry Kosgey. 

But justice watchdogs are not happy with the level of evidence gathered by the prosecutor. “There wasn’t evidence of the role of the police..., and I would say that that decision removes the link between what the ICC is doing and what were rampant police abuses in the post-election violence,” Elizabeth Evenson, legal counsel for Human Rights Watch, told IJT. She says the number of people killed through police inaction was 405, out of a total of 1,100.

Evenson points out that the original allegations had to do with excessive police force. “Those didn’t even make it past the level needed for the summons against Mr. Ali,” says Evenson, disappointed that even the lesser charge of police inaction couldn’t be substantiated. Yet there is no cause for panic in the Kenyatta camp. The “threshold is really, really low,” says Kegoro, to get charges confirmed at the ICC.