Paris-Nairobi, 20 December 2023. The decision to close the investigation into the situation in the Republic of Kenya marks the end of a 13-year inquiry into alleged crimes against humanity related to Kenya’s 2007/2008 post-election violence, which resulted in over 1,000 deaths and the displacement of at least 350,000 people. On the day of its closure, the investigation had indeed yielded only two cases, involving six suspects, with both cases leading to a very disappointing outcome: all charges were either not confirmed, withdrawn or terminated, and all the cases were marred by witness interference and intimidation. In 2013, the ICC Office of the Prosecutor (OTP) opened a new inquiry into witness intimidation and bribery, which is still pending before the Court.
The unsatisfactory track record of the ICC in the Kenya situation, frequently highlighted by local and international civil society, as well as affected communities and victims who actively provided information to the Court over numerous years, has eroded trust in the institution. For many who invested time and hope in the OTP’s pursuit of accountability, the closure of the investigation reinforces apprehensions and concerns. As Martin Mavenjina-Senior Program Advisor-Transitional Justice at KHRC argues: "the investigation has fallen short in numerous aspects, leaving us still awaiting any semblance of meaningful justice. With the investigation now concluded, the OTP should actively work to bolster domestic proceedings. The cycle of impunity must be halted; otherwise, every election risks becoming a recurrence of crimes, including sexual and gender-based crimes, perpetuating a continual rise in the number of victims" .
Certainly, ensuing elections post 2007/2008 continued to be marred by violence and a lack of effective accountability mechanisms , leading to an atmosphere of impunity. As documented by FIDH and KHRC, elections conducted in 2017 and 2022 were marked by election-related violence, including high rates of sexual and gender-based violence (SGBV), both before and after the polls, particularly in areas identified as hotspots. In the 2017 elections alone, the Kenya National Commission on Human Rights documented 123 cases of SGBV, involving both civilians and security agents as alleged perpetrators. Despite these alarming numbers, the government has taken little action to ensure justice for the survivors.
One recent step towards accountability for international crimes committed in the country is the "Baby Pendo" case. This case, which refers to the tragic death of six-month-old Samantha Pendo at the hands of police forces during post-election violence in 2017, was brought by the Kenyan Prosecution Authorities before domestic Kenyan courts as the first crimes against humanity case in 2022. As such, it presents a valuable opportunity to demonstrate a robust political commitment to prosecuting international crimes domestically. Kenyan domestic authorities, with support of international actors including the ICC, should track this development closely, and ensure that sufficient capacity is built to secure justice for victims in this case and the many others like it.
Looking ahead, ICC Deputy Prosecutor Khan stated that "the Office will continue to engage with Kenyan authorities, civil society organizations and relevant domestic actors to enhance cooperation and to identify common synergies between the Office and domestic actors". The form and shape of this cooperation will be particularly important, as it can either support accountability or anchor impunity, and will require further discussions and consideration.
It is in this context that we urge the OTP to maintain an active role in encouraging and supporting domestic accountability efforts, and to explore avenues for collaboration with both Kenyan authorities and civil society and affected communities to ensure that impunity around past and coming elections do not prevail. We also urge the OTP to communicate more clearly the reasons behind the decision to close the investigation, providing transparency to the public, affected communities, and international stakeholders.
Similarly, we urge the Kenyan government to continue strengthening domestic judicial processes to ensure that those responsible for alleged crimes are held accountable within the Kenyan legal system. The closure of the ICC investigation should not be misconstrued as a resolution to the issues at hand; rather, it should serve as a catalyst for the government to intensify its commitment to transparency, accountability, and the rule of law. This pivotal moment calls for a renewed dedication to fostering an environment where justice prevails and Kenyan citizens can trust in the fairness of their legal system.