Plotters of the post-election violence will now be investigated by Prosecutor Luis Moreno-Ocampo. The International Criminal Court judges on Wednesday gave the prosecutor the green light to investigate key plotters, among them ministers.
On Thursday, ICC chief prosecutor Moreno-Ocampo is expected to set out his plans for the investigations during a press conference that will be available in Nairobi through a video link.
The landmark decision was reached by a majority vote among the three judges. “The Pre-Trial Chamber granted the prosecutor’s request to start investigation on crimes against humanity allegedly committed in the Republic of Kenya,” said the Public Affairs Unit of the ICC in a statement on Wednesday.
Judge Ekaterina Trendafilova, who was the chair, and judge Cuno Tarfusser were convinced that crimes against humanity were committed during the chaos. But their colleague, Peter-Hans Kaul dissented, arguing that the violence did not meet the standards of The Hague.
Justice and Constitutional Affairs minister Mutula Kilonzo immediately welcomed the ruling and said: “The decision should have been taken a long time ago. The delay convinced some individuals to think the ICC will take long.”
Also saluting the ruling, the chief mediator, Mr Kofi Annan, said: “Justice for the victims suddenly looks brighter. I urge all concerned to fully cooperate with the ICC,” he said in a statement released by Portland Communications, a firm that handles his affairs.
The long-awaited ruling is likely to send into panic politicians, businesspeople and top civil servants suspected of planning, financing or executing the chaos that broke out after the 2007 presidential elections results.
Some 1,133 people were killed and more than 650,000 displaced from their homes. Mr Moreno-Ocampo handed over 20 names of the suspects and testimonies by witnesses in his application of November 26. He also handed in supporting evidence that was requested in early March.
On Thursday, ICC said judges Trendafilova and Tarfusser were satisfied that the prosecutor had presented adequate information to meet the requirements to investigate crimes against humanity as described in the Rome Statute, which established the court.
Kenya ratified the Rome Statute in June 2005, having signed it in March the same year. “The majority finds that a reasonable basis exists to believe that crimes against humanity have been committed on Kenyan territory,” said the ICC.
But it added that in granting permission for investigations, the threshold of evidence is low — it does not need to be watertight. Dissenting judge Kaul argued that the crimes committed did not amount to crimes against humanity.
He was also not convinced that Mr Moreno-Ocampo proved that the violence was an organised attack on civilians or a determined move by the government to target members of a particular community. Said the judge: “In light of all of the above, I feel unable to authorise the commencement of an investigation.”
But since the court’s ruling is based on a majority, Mr Moreno-Ocampo is now free to investigate events between June 1, 2005 and November 26, 2009. That includes events in the referendum campaign of 2005, the build-up to the 2007 elections and the failure to prosecute the perpetrators of the violence that broke out early 2008.
The ICC ruling relied mainly on reports by the Waki Commission, the Kenya National Commission on Human Rights, reports by non-governmental organisations, international human rights groups and dossiers submitted by PNU and ODM.
The evidence was 1,500 pages long with 39 annexes. Mr Moreno-Ocampo sought the court’s permission after the Grand Coalition Government failed to hand over the Kenyan case to The Hague.