This is the second article in a two part series discussing the pros and cons of holding the confirmation of charges hearings in Kenya.  This article looks at the disadvantages of such hearings and presents the authors’ conclusions.

Disadvantages of Holding Proceedings in Kenya

Having stated the potential advantages, we now turn to the potential disadvantages of holding the confirmation hearings in Kenya. Firstly, it should be noted that victim intimidation has been an existing challenge, and it is likely that this will increase. Although the International Criminal Court (ICC) prosecutor has stated that all his witnesses are out of the country, which may help to ease the threat against others whom perpetrators view as potential witnesses against them, some victims are still perceived as witnesses. Filing its submissions on behalf of unrepresented victims of post election violence, a local NGO (whose name is withheld as the submission was confidential) says a hearing locally would make them feel endangered, and they would likely shun the process. Threats against families of victims would also increase substantially.

Further, while there are only isolated acts of reprisal, attacks, acts of violence or other incidents, in certain towns such as Eldoret, Kituo Cha Sheria in its submission to the Pre- Trial Chamber states that one of their clients received a letter threatening murder. In addition, fear of renewed eruptions of violence is wide-spread in hot spot areas. It is feared that in situ hearings will lead to new escalations of violence in this volatile settings.

In his submission, civil service head Francis Muthaura seems to support this concern saying he will not support the proposal to hold the hearing in Kenya unless the ICC and the government are able to adequately provide for the safety and security of the victims and witnesses. Likewise, the prosecutor says Kenyan authorities are not committed to providing adequate security for witnesses and ICC judges and staff was likely to be accorded the same treatment. Professor Mutua paints a nightmare scenario where “The Ocampo Two” (referring to Uhuru and Ruto) may mobilize their ethnic supporters and tribal demagogues to orchestrate violence. This is one way to disrupt the trials and demonstrate their “dangerousness” to Kenya. He points to the possibility of the government being unwilling or unable to provide security for the court forcing “judges and court officers flee for their dear lives.”

Another reason for preferring that proceedings be conducted in the Seat of the Court is that ‘The Hague’ has become an important symbol for many Kenyans who believe the ICC cannot be manipulated by some of the suspects who are perceived to be powerful enough to manipulate the process if proceedings are held locally.

According to the latest Kenyan National Dialogue and Reconciliation (KNDR) monitoring report, the naming of suspects has evolved discourses in which some communities claim to be under siege. There are new discourses of victimization and isolation among some political elites. They are also mobilizing their ethnic constituencies along these discourses. Suspects have effectively created the perception that they are being unjustly targeted for political reasons and in the process causing deep-seated ethnic tension.  This ethnicization of the ICC process considerably raises the stakes and the possibility of ethnic mobilization in opposition to the Court should it choose to hold the confirmation hearings in Kenya.

Media ownership is crucial in the coverage of news. A majority of the media is owned and/or influenced by powerful politicians. Two of the suspects own media houses while another suspect is an influential journalist in a high rated local language commercial station. There is a high likelihood that the media might cater to these interests should the hearings be held in Kenya.

In his submission, former Police Commissioner General Ali said he would rather have the hearings held in The Hague to avoid any delay perhaps due to the practicalities involved in coordinating of such hearings in Kenya. Similarly, according to Deputy Prime Minister Uhuru Kenyatta the venue for the proceedings is determinant on the scheduled date of the confirmation hearing being effective and in such circumstances a change of venue which delays these proceedings would be unacceptable to him.

Conclusion

The arguments for and against holding confirmation hearings in Kenya seem, on the face of it, to balance out against each other, which is perhaps the reason why the Pre-Trial Chamber suggesting it as an option in the first place; but considering the security threats posed to witnesses, victims, and the Court itself, as well as the fact that Kenya will have entered a treacherous stretch leading up to the next election scheduled to be held in 2012 in our view tips the balance against holding the confirmation hearings in Kenya.

Njonjo Mue is the Deputy Director for Africa of the International Center for Transitional Justice. Rosemary Tollo is a communications consultant.