Kenya – Information sheet on the situation and cases
I. INTRODUCTION
The post-election violence in Kenya from December 2007 to February 2008 echoed the outbreaks of
violence that have followed national elections since the multi-party system was established in the
country in 1991. In 2007-2008, the violence was ignited by allegations of election fraud. The main
opposition party, the Orange Democratic Movement, had been successful in the parliamentary vote,
and its presidential candidate Raila Odinga was showing a lead of a million votes towards the end of
the vote count. But in the last few hours of vote counting resulted in an apparent victory for the
incumbent President Kibaki of the Party of National Unity. Violence took place in many regions of
Kenya and as yet, few perpetrators have been held to account.
The ICC prosecutor alleged that the post-election violence was coordinated and targeted civilians.
The ICC prosecutor argued that initially, ODM opposition supporters were mobilized to attack ethnic
Kikuyu and others perceived to have voted for President Kibaki of the PNU. It is further alleged that
retaliation was then targeted at people of Kalenjin, Luo, and Luhya ethnicity, who were perceived as
affiliated with the ODM opposition party. There are also allegations of police violence at this time. In
the period from the December 27 election to February 28, 2008 (when a power-sharing deal was
struck between the two main parties), it is reported that between 1,133 and 1,220 people were killed,
3,561 were injured, and approximately 350,000 were displaced. An increased number of rapes and
acts of sexual violence also took place during this time.
II. KEY JUDICIAL DEVELOPMENTS
Opening of the investigation

On 15 March 2005, Kenya ratified the Rome Statute, allowing the Court jurisdiction over war
crimes, crimes against humanity, and genocide committed by Kenyan nationals or on Kenyan
territory after July 1, 2002 – entry into force of the Rome Statute.

On 26 November 2009, ICC Prosecutor requested authorization to open an investigation in
relation to the crimes allegedly committed during the 2007-2008 post-election violence in
Kenya in which around 1,300 people were allegedly killed. This was the first time that the
Prosecutor had invoked the proprio motu powers granted to him under Article 15 (3) of the
Rome Statute (i.e. the right to initiate an investigation at his own instigation, without a referral
from the State Party or the UN Security Council).

On 31 March 2010, Pre-Trial Chamber II authorised the Prosecutor to open an investigation
into alleged crimes against humanity committed between 1 June 2002 (the date of the Rome
Statute’s entry into force for Kenya) and 26 November 2009 (the date the Prosecutor filed the
request for authorisation to start an investigation) in Kenya
Summonses to appear

On 8 March 2011, PTC II summoned Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and
Mohammed Hussein Ali, William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang
to appear before the Court, as it found reasonable grounds to believe that they committed the
crimes alleged by the Prosecutor.

On 7 and 8 April 2008, the 6 defendants made their initial appearance before the Court in The
Hague.
Confirmation of charges

On 23 January 2011,
1
o
o

The Judges declined to confirm the charges against Ali and Kosgey. Specifically in
regards to Kosgey, the Chamber found that the Prosecutor relied on one anonymous
and insufficiently corroborated witness. With regards to Ali, the Chamber found that
there was not sufficient evidence to connect the Kenya Police (and thus Ali as former
Commissioner of it) to attacks carried out in the areas where perceived Orange
Democratic Movement supporters resided.
PTC II confirmed the charges against Muthaura, Kenyatta, Ruto and Sang for alleged
crimes against humanity committed during post-election violence in 2007-2008 in Kenya.1
On 29 March 2012, the ICC Presidency constituted Trial Chamber V and referred the cases to
it.
Multiple characterization of responsibility

On 3 July 2012, the Prosecution requested the Chamber to give notice that in addition to
indirect co-perpetration, the criminal responsibility of Muthaura, Kenyatta and Ruto could
equally be characterized as
o ordering, soliciting or inducing under Article 25(3)(b);
o aiding, abetting or otherwise assisting under Article 25(3)(c);
o or contributing “[i]n any other way” to a crime committed by a “group of persons acting
with a common purpose” under Article 25(3)(d).2
Legal re-characterisation of facts

On 3 July 2012, the Prosecution submitted in Muthaura & Kenyatta case that
o forcible circumcision and penile amputation should be characterized as “other forms
of sexual violence”, adding that such acts were inherently sexual in nature and that
the harm they caused was not merely physical but also attacked the victims’
sexuality.
o looting and destruction of property should be considered as predicate acts underlying
the charge of persecution in addition to the charge of deportation or forcible transfer. 3

On 4 July 2012, the LRV in Ruto & Sang submitted that acts of destruction and/or burning of
property, infliction of injuries and looting, currently referred to as ‘means by which the crimes
[of forcible displacement] currently charged were allegedly committed’, should also be
specifically included as independent charges such as persecution and other inhuman acts.4
The LRV added that victims who did not end up displaced as a result of these crimes could be
left out by the current formulation.The Defence teams of Ruto & Sang both objected to the
LRV’s request, adding that it was premature.5
Start of the trial

On 9 July 2012, TC V set the dates for the commencement of the trials in Ruto & Sang and
Muthaura & Kenyatta, for 10 and 11 April 2013 respectively.6 The defendants are not in the
custody of the Court.
Participation of victims
1
Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, , ICC-01/09-01/11-373,
http://www.icc-cpi.int/iccdocs/doc/doc1314535.pdf; Judge Kaul, dissenting, maintained that the ICC lacked competence because the nature of the
crimes did not amount to crimes against humanity as codified by the Rome Statute.
2
Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and application for notice to be given under
Regulation 55(2) with respect to the accuseds’ individual criminal responsibility, 3 July 2012, ICC-01/09-02/11-444, http://www.icccpi.int/iccdocs/doc/doc1436787.pdf ; Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and
application for notice to be given under Regulation 55(2) with respect to William Samoei Ruto’s individual criminal responsibility, 3 July 2012, ICC01/09-01/11-433, http://www.icc-cpi.int/iccdocs/doc/doc1436934.pdf
3
Prosecution’s application for notice to be given under Regulation 55(2) with respect to certain crimes charged, 3 July, ICC-01/09-02/11-445,
http://www.icc-cpi.int/iccdocs/doc/doc1436956.pdf
4
Submissions of the Victims’ Representative on Regulation 55 and Article 25(3), 4 July 2012, ICC-01/09-01/11-436, http://www.icccpi.int/iccdocs/doc/doc1426649.pdf
5
Joint Defence Response to Submissions of Victims’ Representative on Regulation 55 and Article 25(3), 25 July 2012, ICC-01/09-01/11-444,
http://www.icc-cpi.int/NR/exeres/761BE968-257E-47CD-92E2-4668BF3A6A4E.htm
6
Decision on the schedule leading up to trial, 9 July 2012, ICC-01/09-01/11-440, http://www.icc-cpi.int/iccdocs/doc/doc1439279.pdf; Decision on
the schedule leading up to trial, 9 July 2012, ICC-01/09-02/11-451, http://www.icc-cpi.int/iccdocs/doc/doc1439275.pdf
2

Pre-Trial Chamber II granted the status of victims authorised to participate in the proceeding.
o To 229 persons in Muthaura & Kenyatta
o To 327 persons in Ruto & Sang
III. ALLEGED CRIMES
In brief, the case one now involves two members of the Orange Democratic Movement (ODM), the
opposition party at the time of the elections, and case two involves two members of the Party of
National Unity (PNU), then the incumbent party.
Ruto of the ODM is alleged to be an indirect co-perpetrator of crimes against humanity of murder,
forcible transfer, and persecution, allegedly committed against supporters of the PNU. Sang of the
ODM is alleged to have contributed to the commission of the crimes.
Muthaura and Kenyatta of the PNU are alleged to be indirect co-perpetrators of the crimes against
humanity of murder, forcible transfer, rape, persecution, and other inhumane acts, allegedly
committed against ODM supporters, partly in retaliation against attacks against the PNU supporters.
A. The Prosecutor v. William Samoei Ruto and Joshua Arap Sang
Charges
Mr Ruto is accused of being criminally responsible as an indirect co-perpetrator pursuant to article
25(3)(a) of the Rome Statute for the crimes against humanity of:
 murder (article 7(l)(a));
 deportation or forcible transfer of population (article 7(l)(d)); and
 persecution (article 7(l)(h)).
Pre-Trial Chamber II found that there are no substantial grounds to believe that Sang is an indirect coperpetrator, because his contribution to the commission of the crimes was not essential. Instead,
Sang is accused of having otherwise contributed (within the meaning of article 25(3)(d) of the Rome
Statute) to the commission of the following crimes against humanity:
 murder (article 7(l)(a));
 deportation or forcible transfer of population (article 7(l)(d)); and
 persecution (article 7(l)(h)).
Alleged crimes (non-exhaustive list)
Pre-Trial Chamber II found that there are substantial grounds to believe that:

Immediately after the announcement of the results of the presidential election and specifically
from 30 December 2007 until 16 January 2008, an attack was carried out – following a
unified, concerted and pre-determined strategy – by different groups of Kalenjin people, in
locations including Turbo town, the greater Eldoret area (encompassing Huruma, Kiambaa,
Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town, in the Uasin Gishu
and Nandi Districts, the Republic of Kenya. The attack allegedly targeted the civilian
population, namely the Kikuyu, Kamba and Kisii ethnic groups, which were perceived as
Party of National Unity (PNU) supporters.

In particular, the violence in the Uasin Gishu District (encompassing Turbo town and the
Eldoret area) allegedly resulted in more than 230 people dead, 505 people injured and more
than 5,000 people displaced. In the Nandi District (encompassing Kapsabet town and Nandi
Hills town), the attack allegedly ended in the death of at least 7 persons and thousands of
persons were forced to seek refuge at Nandi Hills police station and in the surrounding areas.
A number of houses and business premises were also looted and burned.

Allegedly, there was a plan to punish PNU supporters in the event that the 2007
presidential elections were rigged, which allegedly aimed at expelling them from the Rift
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Valley, with the ultimate goal of creating a uniform Orange Democratic Movement (ODM)
voting block. In order to implement the plan agreed upon, a network of perpetrators has
been allegedly established with the purpose of evicting members of the Kikuyu, Kisii,
and Kamba communities in particular because they were perceived as PNU supporters.
The Network was allegedly under responsible command and had an established hierarchy.
The network possessed the means to carry out a widespread or systematic attack
against the civilian population, as its members had access to and utilised a considerable
amount of capital, guns, crude weapons and manpower.

William Ruto provided essential contributions to the implementation of the common plan by
way of organising and coordinating the commission of widespread and systematic attacks that
meet the threshold of crimes against humanity, in the absence of which the plan would have
been frustrated. William Ruto allegedly:
(i) overall planned and was responsible for the implementation of the common plan in
the entire Rift Valley;
(ii) created a network of perpetrators to support the implementation of the common plan;
(iii) directly negotiated or supervised the purchase of guns and crude weapons;
(iv) gave instructions to the perpetrators as to who they had to kill and displace and
whose property they had to destroy; and
(v) established a rewarding mechanism with fixed amounts of money to be paid to the
perpetrators upon the successful murder of PNU supporters or destruction of their
properties.

Joshua Arap Sang, by virtue of his influence in his capacity as a key Kass FM radio
broadcaster, allegedly contributed in implementation of the common plan by:
(i) placing his show Lee Nee Eme at the disposal of the organisation;
(ii) advertising the organisation’s meetings;
(iii) fanning violence by spreading hate messages and explicitly revealing a desire to
expel the Kikuyus; and
(iv) broadcasting false news regarding alleged murder(s) of Kalenjin people in order to
inflame the violent atmosphere.
B. The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta
Charges
Mr Muthaura and Mr Kenyatta are accused of being criminally responsible as an indirect coperpetrators pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of:
 murder (article 7(l)(a));
 deportation or forcible transfer of population (article 7(l)(d));
 rape (article 7(l)(g));
 persecution (article 7(l)(h)); and
 other inhumane acts (article 7(l)(k)).
Alleged crimes (non-exhaustive list)
Pre-Trial Chamber II found that there are substantial grounds to believe that:

From 24 until 28 January 2008, the Mungiki criminal organisation allegedly carried out a
widespread and systematic attack against the non-Kikuyu population perceived as
supporting the Orange Democratic Movement (ODM) (mostly belonging to Luo, Luhya and
Kalenjin ethnic groups) in Nakuru and Naivasha.

The attacks in or around Nakuru and Naivasha resulted in a large number of killings,
displacement of thousands of people, rape, severe physical injuries, mental suffering and
destruction of property.

Between, at least, November 2007 and January 2008, inter alia, Muthaura, Kenyatta and
members of the Mungiki, allegedly created a common plan to commit these attacks.
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According to the alleged plan, it was envisaged at the meetings that the Mungiki would carry
out the attack with the purpose of keeping the Party of National Unity (PNU) in power, in
exchange for an end to government repression and protection of the Mungiki’s interests.

The contribution of Uhuru Muigai Kenyatta to the implementation of the common plan was
allegedly essential. More specifically, Mr Kenyatta’s contribution allegedly consisted of
providing institutional support, on behalf of the PNU Coalition, to secure:
(i) the agreement with the Mungiki for the purpose of the commission of the crimes; and
(ii) the execution on the ground of the common plan by the Mungiki in Nakuru and
Naivasha.

The contribution of Francis Kirimi Muthaura, to the implementation of the common plan was
essential. More specifically, Mr Muthaura’s contribution consisted of:
(i) establishing links, through intermediaries, between the PNU Coalition and the
Mungiki for the purposes of the commission of the crimes;
(ii) contributing funds to local politicians and Mungiki leaders towards the organisation of
the crimes on the ground;
(iii) mobilising, through mid-level perpetrators, Mungiki members to carry out the attack in
Nakuru and Naivasha; and
(iv) placing the Mungiki members under the operational command of local politicians for
the time and for the purposes of the commission of the crimes.
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