Overview by Rosalie Dieleman, Research Associate PILPG-NL
Nelly Warega, Chair Panelist, ICJ-Kenya
Fergal Gaynor, Victim’s representative in Kenyatta
Njonjo Mue, ICJ-Kenya
Jaqueline Mutere, Victim of Kenya’s PEV
Jaqueline Mutere expressed her disappointment in ICC’s failure to prosecute Kenyan perpetrators of sexual violence, noting that, if the ICC is unable to prosecute, who would dare to do it in Kenya?
Ferghal Gaynor criticized the Kenyan government for obstructing justice, and emphasized that the victims have been failed by both the justice processes in Kenya and before the ICC.
Njonjo Mue noted that there was a clear pattern in domestic efforts to prosecute: whenever the ICC was increasing its efforts for making a case, domestic efforts rose, so as to implicate that the ICC was not acting in accordance with the complementarity principle.
Nelly Warega called upon the government with the statement that, if the state is indeed willing to investigate and prosecute, it should be as simple as cooperating with civil society.
This event, centered around justice in Kenya after the collapse of the cases at the ICC, involved four speakers: Jaqueline Mutere, as a representative for the victims of the sexual violence after the 2007 elections, Ferghal Gaynor, who was the legal counsel in the Kenyatta case, Njonjo Mue as a representative of Kenyans for Peace with Truth and Justice, and Nelly Warega, who works at the Kenyan office for the International Commission of Jurists.
Jaqueline, a victim and survivor of the sexual violence, opened the debate by telling her story and that of many other women who have experienced the same. She explained that many women who had been raped, conceived and gave birth to children from the men who had raped them, and many had contracted diseases as a consequence of rape. These women often did not receive the help they needed, and their children were often neglected. Jaqueline visited many of these women and attempted to help them, by creating a platform to talk about it, and set up a group for these victims. Jaqueline explained that what is needed most by these women, is recognition within their country and of the president of what has happened to them. Victims of sexual violence often go overlooked in the Kenyan society. As some of the offenders were in positions of power or governmental service, such as the police, many of the women were not even able to report the crimes that had been committed to them. Jaqueline expressed her disappointment in the failure to prosecute by the ICC, noting that, if the ICC is unable to prosecute, who would dare to do it in Kenya?
Ferghal Gaynor described his work with victims in the Kenyatta trial and explained how hopeful many Kenyans were with regards to a prosecution at the ICC, even though they expected the government to interfere with the investigation and proceedings. According to Gaynor, the victims were also aware of bribery and intimidation of witnesses in the Ruto case. Ferghal Gaynor made strong statements concerning efforts of the Kenyan government to obstruct justice, and emphasized that the victims have been failed by both the justice processes in Kenya and before the ICC. Aside from criticizing the Kenyan government, he also pointed out issues on the side of the ICC, such as the fact that the ICC did not want to put investigators in danger and therefore investigated under a low risk-tolerance. In addition, the ICC did not have the access to archival material that it needed, whereas according to Gaynor, the defense did receive access to these documents.
Njonjo Mue elaborated on the domestic options for prosecution, including the establishment of a special tribunal and the establishment of a special international crimes division in Kenya. The problem however, according to Mue, is the lack of political will for the prosecution of these crimes. A witness protection agency was set up as well, which is in principle a good institution, yet lacks adequate funding from the government and is therefore ineffective. Mue also noted that there was a clear pattern in domestic efforts to prosecute: whenever the ICC was increasing its efforts for making a case, domestic efforts rose, so as to implicate that the ICC was not acting in accordance with the complementarity principle.
Nelly Warega elaborated on the strategic litigation cases that civil society – including the International Commission of Jurists – filed against the government for failing to investigate and failing to protect. In the closed court sessions, all 8 victim petitioners have now gotten the chance to testify, along with experts such as psychological workers and personnel from the hospitals at which the women were treated. Warega called upon the government with the statement that, if the state is indeed willing to investigate and prosecute, it should be as simple as cooperating with civil society. Mue elaborated on this with regards to the impact of these strategic litigation processes for the victims, noting 6 points of impact. The first being a declaration of the rights of the victims; secondly, an acknowledgement of the suffering of the victims and the society in general; thirdly. a possible investigation and declaration of the truth about these events; fourthly, reparations might be awarded to victims; additionally, this could be a start of addressing systemic structural failures, such as in the police force; and lastly, it would help send a message to avoid recurrence.
After the speaker’s round, the public was allowed to engage with questions, which turned the event into a heated debate between civil society members, victims and representatives of the Kenyan government. Dr. Korir Sing’Oei, who is a Legal Advisor at the Executive Office of the Deputy President in Kenya, aside from expressing his regret over what happened to Jaqueline, strongly expressed his worry and disapproval of the “vilification” of Kenya by civil society in these forums. He pointed at all the work Kenya has done for victims during the post-election period, as well as the fact that there is more to be done and the fact that gender based violence issues have not received the attention they should have. He stressed the fact that Kenya is willing and able to prosecute, and that various cases of violence have been prosecuted already under domestic law Florence Kajuju, member of the Kenyan parliament, expressed that she felt for Jaqueline and that there is much more to be done for victims. She did express however that she thought it wrong to “ignore what the government has done, and to condemn the government at the Assembly of States Parties”. She added that: “Kenya is doing its part”. The heated discussion continued for over an hour, which mostly consisted of the different parties throwing facts and figures on the table, which were subject to disputation and discussion, which lead to the event to conclude on a very bitter note.