Kenyatta, Ruto, Sang and Muthaura to Face Trial At ICC for Crimes Against
Humanity
Keith Somerville
23 January 2012
_____
Analysis
The presiding judge in the cases of crimes against humanity committed during
the post-election violence (PEV) in Kenya in 2007-8 have decided by majority
verdict that William Ruto and Joshua Arap Sang will face charges of crimes
against humanity, murder, forcible deportation and persecution. Uhuru
Kenyatta and Francis Muthaura will face charges of crimes against humanity,
murder, deportation or forcible transfer and persecution, rape and other
sexual violence and inhumane acts.
Henry Kosgey and Mohammed Hussein Ali, former Chief of the Kenyan Police,
were told that the evidence at the pre-trial hearings in 2011 was not
sufficient to charge them. Kenyatta, Ruto and Muthaura are all charged as
indirect perpetrators of the crimes of which they are accused, while Sang is
being charged as a contributor to the crimes.
The decision, announced on 23rd January at the court in The Hague, was
broadcast live in Kenya via the internet. The judge reading the court
chamber's decision, Ekaterina Trendafilova, said that the decision was a
majority one and that Judge Hans-Peter Kaul had dissented, believing that
the crimes committed were serious ones but that they could be prosecuted
under Kenyan law and did not constitute crimes against humanity.
Those charged will now await a further announcement about the timing of the
trial, which will be held in The Hague. They are at liberty to return to
Kenya but with the proviso that the court would reconsider this if those to
stand trial engaged in incitement to hatred or other serious crimes.
The announcement will throw Kenyan politics into turmoil, with elections due
in March 2013 (the result of a recent High Court ruling). Kenyatta and Ruto
have both said they will stand in the presidential election. The former
would be the natural successor to President Mwai Kibaki, who cannot run for
a third term in office, and would be likely to harness the overwhelming
support of his own Kikuyu community. They voted en masse for Kibaki's PNU
(Party of National Unity) in December 2007.
Ruto was a key ally of Raila Odinga in 2007 and rallied the majority of
votes in Kalenjin areas of the Rift Valley behind Odinga's Orange Democratic
Movement (ODM). Ruto and Odinga have since fallen out violently, with Ruto
campaigning fiercely against Odinga during the constitutional referendum in
2010 and vowing to oppose him in the presidential elections. Talks between
Ruto and Kenyatta in recent months have suggested a possible electoral
alliance - the sticking point will be that only one of them could run for
president if they become allies.
It remains to be seen whether the ICC decision will count them both out of
the race - either through legal challenges by opponents to them standing for
office while facing such serious charges, or through potential allies seeing
the charges as electoral liabilities. Kenyan politics at election time is
about shifting political alliances rather than competition between
established parties, with key politicians throwing their weight behind
candidates according to political expediency and likely material gain from
office rather than permanent community or party allegiances, let alone
thoughts of policy or ideology.
Media on trial
The decision of the court to put Joshua arap Sang on trial is an interesting
one that may have repercussions for the vernacular media network in Kenya.
While the other accused held high political or government office, Sang was
the chief of operations and the most popular broadcaster at Kass FM - a
Kalenjin-language radio station with a strong following in the Rift Valley
and among Kalenjin communities throughout Kenya. When originally charged,
the ICC indictment included reference to his use of his "radio program to
collect supporters and provide signals to members of the plan" for attacks
against communities supporting the PNU.
Sang has always denied this, both before and after the ICC released its
indictment. When I interviewed him in Nairobi in February 2010 he was
adamant that while his station broadcast criticism of the election results
and of the PNU, it did not incite violence. Transcript evidence of Kass's
output is thin and there are just a couple of examples when the station's
output appeared to urge attacks against others - none of them directly
attributable to Sang himself (though he was the best-known and most popular
of its presenters). He admitted that phrases like "the mongoose is at the
chickens" and "the people of the milk should clear the weeds from the grass"
might have been broadcast, but denied that they meant Kalenjin-speakers
should attack people from communities like the Kikuyu, Kamba or Kisii, which
had supported Kibaki's PNU, and drive them from the Rift Valley. He said
they were popular colloquial expressions and that all his station was doing
was broadcasting in a language that the audience would understand and
appreciate.
Media observers in Kenya (and other Kenyan journalists) would not
necessarily agree - several told me that the expressions were instructions
to attack Kikuyu and others and drive them from the Rift Valley, precisely
the charges against Ruto and Sang in the ICC decision. It should be noted
that other vernacular radio stations - Kameme FM and Inooro (both
Gikuyu-language stations) and Lake Victoria FM (Luo) - were also accused of
biased and inflammatory broadcasting during the violence.
Supporters of Kass and of Sang unsurprisingly ask why he was singled out by
the ICC. That might become apparent once the trial commences, as the ICC
must have more evidence than the dozen or so transcripts in the public
domain, which seem too insubstantial to be the basis of such serious
charges. The charges against Sang (and Ruto) relate not only to radio
broadcasts but the organization of a network of supporters to gain power in
the Rift Valley Province and to "punish and expel from the Rift Valley those
perceived to support the PNU". The indictment suggests that Joshua arap Sang
was much more than a radio broadcaster.
The Hague trial will not only be of crucial importance to the elections next
year, but could also have a major effect on the future of vernacular radio,
if the trial were to reveal extensive hate broadcasting. The behaviour of
radio stations in 2007-8 and again during the constitutional referendum was
widely criticized - some media commentators and monitors going to the
unsupportable lengths of comparing their output in 2008 to Radio-Television
des Mille Collines during the Rwandan genocide.
Inappropriate comparisons aside, there is clearly a problem. During the PEV
and the referendum of 2010, there were broadcasts by a number of stations,
including Kass, which were deemed to be inciting violence and to be a threat
to peace. Then in June and July 2010 Kenyan National Cohesion and
Integration Commission warned a number of stations about hate broadcasting
during the referendum campaign. In 2010, the chief Kenyan government press
officer, Albert Mutua, told the author that successive governments had been
unhappy about the role and behaviour of vernacular stations, believing them
to be a danger to national unity and a source of community tensions. It will
be instructive to monitor output as the political campaigns for parliament
and the presidency get underway later this year.
Keith Somerville is lecturer in the School of Politics and International
relations at the University of Kent. He worked at the BBC World Service from
1988 to 2005.
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Received on Mon Jan 23 2012 - 18:37:57 EST
