The International Criminal Court is the proper place to deal with the suspects of Kenya's post-election violence. Appeals judges at the ICC in The Hague ruled that Kenya has not shown that it is investigating nor prosecuting the so-called Ocampo Six.

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Judge Daniel David Ntanda Nsereko, the presiding judge for these appeals, said "no legal, factual or procedural error could be discerned in the Pre-Trial Chamber’s decisions of 30 May 2011." He explained that, for the cases to be inadmissible, a national investigation must be ongoing and must cover the same individuals and substantially the same conduct as alleged in the proceedings before the ICC.

The appeals chamber removed the last obstacle in the run-up to confirmation charges against William Ruto, Joshua Arap Sang and Francis Muthaura on Thursday, the first three out of six Kenyan suspects.

The principle of complementarity
The Kenyan government claims it can deal with the cases itself and that there is no need for the ICC to interfere. It argues that Kenya has implemented constitutional and judicial reforms, and is in the process of investigating the cases nationally. If so, the ICC would lack jurisdiction because of the principle of complementarity. This principle allows the ICC to intervene only if the national authorities do not investigate or prosecute, or is otherwise unwilling or unable genuinely to carry out proceedings against the suspects for the same alleged crimes.

The ICC judges at a pre-trial chamber in May dismissed Kenya's application because it did not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC’s jurisdiction.

The judges also considered that Nairobi failed to provide the chamber with any information as to the conduct, crimes or the incidents for which the suspects are being investigated or questioned. The chamber concluded that “there remains a situation of inactivity and consequently, that it cannot but determine that the case is admissible”.

Post-election violence
More than 1,300 people were killed and hundreds of thousands displaced, following disputed elections in December 2007. After the dust settled, the Kenyan parliament voted down a bill to establish a tribunal to prosecute those responsible for the killings, rapes and forced evictions that took place during the fighting.

The 30-day bloodshed between Kenya’s Orange Democratic Movement and the Party of National Unity damaged the country’s reputation for stability in an otherwise turbulent region.

Because Nairobi, which is a signatory to the Rome Statute, chose not to send an official invitation to the prosecutor, Ocampo took matters into his own hands. In May 2010 he started investigating crimes against humanity. It took a year to bring his investigation before the Court in two cases.

The cases
Kenya’s Deputy Prime Minister Uhuru Kenyatta is in the dock together with the head of the country’s civil service Francis Muthaura and former police Chief Hussein Ali. They are charged with murder, deportation, persecutions and rape. These three are seen as allies of President Mwai Kibaki, belonging to the Praty of National Unity (PNU).

The other case comprises former Higher Education Minister William Ruto, former Minister for Industrialisation Henry Kosgey and radio host Joshua Arap Sang. They back Kibaki’s political rival, Prime Minister Raila Odinga, of the Orange Democratic Movement (ODM). They are accused of being part of a “network targeting members of the civilian population supporting the PNU, in order to punish them and evict them from the Rift Valley with the ultimate goal of gaining power and creating a uniform ODM voting block.”

The Ocampo Six
Dubbed the ‘Ocampo Six’, they are all accused of crimes against humanity. Uhuru Kenyatta and William Ruto, who have both announced that they intend to run for president in 2012, reject the charges, saying they are politically motivated because other contenders, who were already on the political stage at the time of the atrocities, are not on Ocampo’s list. The suspects had appeared voluntarily before the court on 7 and 8 April 2011, following summonses to appear issued by the judges.