A Practitioner's Perspective on the Kenya I and Kenya II Cases Before the ICC

• Author: Brianne Mcgonigle-Leyh
• Position: Institute of Human Rights, Utrecht University, Netherlands, University College Utrecht, Netherlands
• Pages: 51-57

Brianne Mcgonigle Leyh, ‘A Practitioner’s Perspective on the Kenya I

and Kenya II Cases Before the ICC’ (2014) 30(79) Utrecht Journal of

International and European Law 51, DOI: http://dx.doi.org/10.5334/

ujiel.co

Introduction

On 10 September 2013 the International Criminal Court (ICC) began hearing a case against William Ruto,

Deputy President of the Republic of Kenya, and Joshua Sang. The related case against the President of Kenya,

Uhuru Muigai Kenyatta, was scheduled to begin in November 2013 but has since been postponed until

October 2014. Both cases are noteworthy since they are the first against sitting politicians. Unsurprisingly,

they have not been without controversy.

The two cases stem from post-election violence that erupted in Kenya from December 2007 to February

2008. The violence began after allegations of election fraud after the main opposition party, the Orange

Democratic Movement (ODM), and its presidential candidate Raila Odina, were defeated in the final hours of

voting by the incumbent President Mwai Kibaki of the Party of National Unity (PNU). Armed gangs attacked

individuals from other ethnic and tribal groups. Approximately 1200 people were killed, 3500 injured and

350,000 forcible displaced (some figures go as high as 600,000 displaced). Additionally, a high number of

rape and sexual-based violence occurred. Given the scale of the violence, an African Union mediation team,

led by Kofi Annan, stepped in to negotiate a peace.

The mediation resulted in the two political parties agreeing to share political power and to implement

important legislative and economic reforms. As part of the agreement, the Kenyan government appointed

a judicial commission to investigate the crimes that took place, referred to as the Commission of Inquiry

into Post Election Violence or the Waki Commission after the Appeals Judge who chaired the body. The Waki

Commission compiled a report along with a list of alleged perpetrators of violence, and the chairman gave

this report to Annan who in turn handed it to the then Prosecutor of the ICC, Louis Moreno Ocampo.

INTERVIEW

A Practitioner’s Perspective on the Kenya I and Kenya

II Cases Before the ICC

Interviews with the Lead Defense Counsel in the Ruto Case (Kenya I), Karim A.A.

Khan, and Lead Prosecutor in the Kenyatta Case (Kenya II), Adesola Adeboyejo

Brianne Mcgonigle Leyh1

1 Institute of Human Rights, Utrecht University, Netherlands, University College Utrecht, Netherlands

b.n.mcgonigle@uu.nl

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

Keywords: ICC; International Criminal Law; Ruto; Kenyatta; Kenya I and Kenya II

On 10 September 2013 the International Criminal Court (ICC) began hearing a case against Wil-

liam Ruto, Deputy President of the Republic of Kenya, and Joshua Sang. The related case against

the President of Kenya, Uhuru Muigai Kenyatta, was scheduled to begin in November 2013 but

has since been postponed until October 2014. Both cases are noteworthy since they are the

rst against sitting politicians. Unsurprisingly, they have not been without controversy.

These trials are challenging for the Court, not least because the Kenyan government recently

passed a resolution withdrawing from the ICC and repealing its domestic legislation criminal-

izing international crimes, arguing that Kenya needed to restore it sovereignty and resist neo-

colonialism. Although this withdrawal does not aect the current cases before the Court, it

certainly makes cooperation with Kenya for the purpose of further investigations more dicult.

Karim A.A. Khan, QC, formerly the defense counsel of Muthaura and currently the lead defense

counsel of Ruto, raised these issues in an interview taking place one week before his opening

statements in the Kenya I case. These same issues and concerns were also raised with Adesola

Adeboyejo a lead prosecutor in the Kenya II case in December 2013.