Much has been said inside and outside the International Criminal Court (ICC) about Prosecutor Luis Moreno-Ocampo’s reliance on several reports for his evidence in the two Kenya cases that are at the pre-trial stage. Some of the suspects in those cases have in the past gone as far as saying Moreno-Ocampo has based his cases solely on the reports of the Commission of Inquiry into the Post-Election Violence and the Kenya National Commission on Human Rights.

This four-part series of articles will seek to compare those reports against what is publicly available of Moreno-Ocampo’s case to explore whether the ICC prosecutor has relied only on them for his case. This first article will compare the framework of the prosecutor’s case with the reports.

So, is the ICC prosecutor dependent on those two reports for his evidence and shaping the cases he has instituted against Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta, Head of Public Service Francis Kirimi Muthaura, former Cabinet ministers William Samoei Ruto and Henry Kiprono Kosgey, former police chief Mohammed Hussein Ali and journalist Joshua arap Sang?

The short answer is no, but there is a caveat. A key part of the report of the Commission of Inquiry into the Post-Election Violence is not public. That is the names of the people the commission thought bore the greatest responsibility for the violence that nearly tore up Kenya in late December 2007-February 2008. Nor is it public information exactly what evidence against those individuals was collected by the commission, commonly referred to as the Waki Commission in reference to Court of Appeal Judge Philip Waki, who chaired it.

A second caveat is that not all the evidence Moreno-Ocampo has is publicly available. There are two key sources of his cases that are publicly available. These are the Documents Containing the Charges. Without seeking to oversimplify it, these are in essence long versions of what in Kenya we are familiar with as a charge sheet. And then the presentation the prosecution team made during the confirmation of charges hearings. However, the prosecution witness statements and other material that have been used to back those documents are not publicly available. This is because the prosecution, at the pre-trial stage, is only required to show there substantial grounds for a case to go to trial and not all its information needs to be open at this stage.

The Waki Commission chose to keep its names of suspects and evidence secret until a credible process to investigate their roles was initiated either in Kenya or at the ICC. The chief mediator of the Kenya conflict, former United Nations chief, Kofi Annan, was given custody of the names and evidence when the Waki Commission handed over its report in October 2008. Annan in turn handed those over to Moreno-Ocampo in July 2009 when it was clear that Kenya was not going to set up a robust and independent ad-hoc tribunal to investigate and try the postelection violence cases as recommended by the Waki Commission.

With these caveats in mind it is difficult to make a comprehensive assessment about how much Moreno-Ocampo has relied on the two reports, especially the Waki Commission one. But a comparison can still be made. To start with, the prosecutor framed the two cases focussing on two regions of Kenya, the North Rift and the Central Rift. The reports of the Waki Commission and the Kenya National Commission on Human Rights cover all of Kenya and what happened during those two months of bloodshed.

None of the reports question whether the crimes committed in those dark two months of Kenya’s history met the threshold of crimes against humanity. They are categorical, as the prosecutor is, that crimes against humanity were committed in Kenya between December 2007 and February 2008. The reports also do not question whether the ICC has a role in investigating and trying the individuals suspected to be the masterminds of those crimes. The Waki Commission went as far as recommending the ICC intervene in case Kenyan leaders were unable to form an ad-hoc tribunal to handle the cases.

The reports do not, as the prosecutor is required to, seek to show what the organizational policy (the why or motive for committing the crimes) or common plan (the how) was during the violence. (For more on what organizational policy is and its importance in a prosecutor’s case at the ICC, see The Policy Requirement in Crimes Against Humanity by Thomas Obel Hansen, who teaches international law at the United States International University in Nairobi, Kenya.) There are threads of what can be an organizational policy throughout the reports but since they were not written as prosecutorial documents, the threads are not connected. Both the Waki Commission and the Kenya National Commission on Human Rights were formed based on specific Acts of parliament that gave them wide powers to investigate but no prosecutorial powers. And so the work of crafting a credible case to take to trial remains with other offices. Especially since the two commissions were working within tight timeframes. The Waki Commission only had about three months between August and October 2008 to recruit staff, investigate and report back to President Mwai Kibaki, Prime Minister Raila Odinga, and Annan.

As earlier stated, the Waki Commission chose to keep secret the people it suspected planned, funded, or organized the violence. The Kenya National Commission on Human Rights, on the other hand, published a list of more than 219 individuals against whom it had received serious allegations in connection with the postelection violence. Though the KNCHR list of alleged suspects is numbered up to 219, some entries have multiple names. Ruto, Kosgey, Sang, Kenyatta, and Ali feature on that list. Muthaura is not.

Subsequent articles will explore the details of the two cases and then end by tackling the question: Does it matter if Moreno-Ocampo relied only on the reports of the Waki Commission and the Kenya National Commission on Human Rights?