ICC Crucial for Atrocity Victims, Global Justice 

Zambia should reaffirm its membership in the International Criminal Court to best advance justice for victims of atrocities, a group of African organizations and international nongovernmental organizations with a presence in Africa said today.

Zambia’s government began public consultations on the country’s ICC membership the week of March 27, 2017. This was in response to the African Union summit’s adoption in January of an “ICC withdrawal strategy.” An unprecedented 16 countries, including Zambia, entered reservations to this decision.

“Zambia has much to gain by staying with the ICC,” said Boniface Cheembe, executive director of Zambia’s Southern African Centre for the Constructive Resolution of Disputes. “Zambia has been a role model on the continent in matters of peace, democracy, and human rights. Leaving the ICC would erode the country's leadership and threaten respect for the rights of victims of the most brutal crimes across Africa.”

The organizations, which have long worked together to support justice for grave crimes in Africa, also released an updated video featuring African activists on the importance of the ICC in Africa.

As a member of the Southern Africa Development Community (SADC), Zambia has a proud history in the establishment of the ICC, the organizations said. SADC was active in the diplomatic conference in Rome in 1998 where the ICC’s treaty was finalized after six weeks of negotiations. SADC members developed 10 principles for an effective, independent, and impartial court at a meeting in Pretoria in 1997.

The ICC is a groundbreaking achievement in the fight against impunity, the organizations said. It is the first and only global criminal court that can prosecute individuals responsible for atrocities. It is a court of last resort in that it has the authority to try genocide, war crimes, and crimes against humanity committed since 2002, but only when national courts are unable or unwilling to investigate and prosecute. Since the court’s treaty opened for signature in 1998, 124 countries have become members.

Zambia signed the ICC’s Rome treaty on July 17, 1998, the day it opened for signature, and ratified the treaty on November 13, 2000.

The ICC faces many challenges in meeting the expectations of victims of mass atrocities and member countries, the organizations said. Its inability to reach crimes committed in some powerful countries and their allies is a cause for deep concern, even as claims that the ICC is targeting Africa are not supportedby the facts. The court’s reach is limited to crimes committed on the territories of countries that have joined the court or offered the court authority on its territory, absent a referral by the United Nations Security Council.

“The ICC has room for improvement, but it offers hope to victims who have nowhere else to turn for justice,” said Dewa Mavhinga, Southern Africa director at Human Rights Watch. “The court serves African victims who have suffered atrocities.”

The majority of ICC investigations in Africa have arisen in response to requests or grants of authority by governments in the countries where the crimes were committed – as in Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Mali, and Uganda – or through referrals by the UN Security Council – as in Darfur, Sudan and Libya.

The ICC has faced backlash from some African leaders since it issued arrest warrants for Sudanese President Omar al-Bashir for alleged genocide, war crimes, and crimes against humanity in Darfur in 2009 and 2010. In 2016, evidence of the backlash reached new heights when South Africa, Burundi, and Gambia announced they would withdraw from the court, the first countries to take such action.

Gambia has rescinded its withdrawal and South Africa is also re-examining withdrawal, making Burundi the only country to have maintained its withdrawal. Under the ICC Statute, withdrawal goes into effect one year after the state party submits a notification to the UN Secretary-General.

In the wake of the announced withdrawals, many African countries – including Botswana, Burkina Faso, Côte d’Ivoire, Democratic Republic of Congo, Ghana, Lesotho, Mali, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania, and Tunisia – have affirmed their commitment to remain in the ICC and to work for any reform as ICC members.

“We would encourage Zambia to reaffirm its support for the court, particularly in the absence of any functioning regional criminal court that can hold perpetrators to account,” said Kaajal Ramjathan-Keogh, executive director, Southern Africa Litigation Centre. “Zambia’s moves to reconsider its ICC membership raise concern.”

The groups expressing support for Zambia’s continued ICC membership are:

Africa Legal Aid
Africa Centre for International Law and Accountability–Ghana
Centre for Accountability and Rule of Law–Sierra Leone
Centre for Democratic Development–Ghana
Centre for Human Rights and Rehabilitation (Malawi)
Civil Resource Development and Documentation Centre (Nigeria)
Coalition for the International Criminal Court
Fédération Internationale des Droits de l’Homme
Human Rights Watch
JEYAX Development and Training (South Africa)
Kenya Section of the International Commission of Jurists
Kenya Human Rights Commission
Nigerian Coalition for the ICC
Parliamentarians for Global Action
Southern African Centre for the Constructive Resolution of Disputes (Zambia)
Southern Africa Litigation Centre (South Africa)
Transnational Threats and International Crime Division of the Institute for Security Studies

In the video, the plain-clothed police officer is seen holding a young man, whom he turns around and shoots. The officer fires a first round of 5 shots into the midsection of the young man. He is then seen requesting for a second firearm and fires another five rounds into the young man who is at this point lying on the ground. The young man, still evidently alive, receives one more shot and his head falls lifelessly onto the pavement. Next to him is the lifeless body of another young man in a pool of blood who apparently was shot earlier.

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KHRC initiated court proceedings challenging the detention and incarceration of the four Kenyans namely Ravi Ramesh Ghaghda, Anthony Mwadime Wazome, Anthony Keya Munialo and Boniface Chuma Muriuki in Juba-South Sudan on ground that the rights of the arrested persons under the Kenyan Constitution, African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights has been grossly violated by the Government of South Sudan and more specifically:

1. The arrest and incarceration in military installation of the four Kenyans was oppressive and a transgression of fundamental right of equality before the law.
2. The arrest and incarceration of the four Kenyans was arbitrarily done without any justification.
3. The hearing and determination of the case by the High Court of South Sudan contravened the basic principles of natural justice.
4. The four Kenyan’s were denied their right to communicate with an advocate, family and other persons whose assistance was needed contrary to the principles of fair trial.

KHRC seeks to demonstrate to the court the failure of the Kenyan Government to take measures to protect her national’s interest. KHRC’s position is that the Government through the Ministry of Foreign Affairs is mandated to pursue Kenya’s foreign policy in accordance with the Constitution of Kenya, with the overarching objective of protecting and promoting her nation’s interests abroad. KHRC contends that to this extent, Kenyan Government has failed in its fundamental duty to observe, protect, promote and fulfil the fundamental rights of her nationals. KHRC call upon the Cabinet Secretary Ministry of Foreign Affairs to provide information to the families of the arrested persons with respect to progress in relation to their arrest, detention and release. KHRC calls upon the judiciary to put the executive to task on the diplomatic efforts made to negotiate the release of the four Kenyans imprisoned in Juba-South Sudan.

The matter has been mention today, 27th February 2017 for directions with respect to the hearing of the matter. The courts have directed there be a further mention on th 21st of March,2017 for directions, the respondents having failed to file their respective responses.

The most significant inquiry into the truth concerning gross human rights violations committed in Kenya was carried out by the Truth Justice and Reconciliation Commission (TJRC) between August 2008 and May 2013. The TJRC was established with the objective to “promote peace, justice, national unity, healing and reconciliation among the people of Kenya, by establishing an accurate, complete and historical record” of gross human rights violations and abuses inflicted on persons by the State, public institutions and public officers between 12^th December, 1963 and 28^th February, 2008, including the nature, causes and extent of such violations; and determining ways to redress victims of gross human rights violations and restore their dignity. (TJRC Act, 2008)

Over 40,000 victims from across the country recorded statements with the TJRC on varied forms of gross human rights violations committed from pre and post-independence to 2008, including political assassinations, massacres, enforced disappearances, unlawful detention, torture, sexual violence, economic marginalization, discrimination of minority groups, violations of economic and social rights, economic crimes and grand corruption. The TJRC established that these violations were majorly perpetuated in the context of state security operations, and political, land and resource-related conflicts, mainly involving state and security agencies, and causing ongoing, long-lasting and devastating physical, psychological, political and socio-economic effects on individuals, their families and communities.

The TJRC called on the State to put in place a number of measures aimed at providing redress for victims and to prevent recurrence of gross human rights violations. It called on the President, the Chief Justice and Inspector General of Police to acknowledge and offer apologies for violations committed by state agencies, for the establishment of public memorials in honor of victims and affected communities, for further investigations and prosecution of individuals alleged to have been involved in the perpetuation of human rights abuses, and for provision of reparations to affected individuals and communities including compensation, medical and psychological rehabilitation, land restitution, resettlement of displaced persons, expunging of criminal records of individuals who were wrongfully convicted, and provision of citizenship documents denied as a result of discriminatory policies. (TJRC Final Report)

The TJRC in its concluding recommendations for redress and reparations for victims of gross human rights violations underscored an important fact: that the right to the truth, while inalienable and independent, is not an end in itself. It is a right that is intended to be empowering to victims, their families and communities who seek redress, recognition, acknowledgment and closure to their often silenced, suppressed and contested experiences of gross human rights violations.

The TJRC report was submitted to the President in May 2013 and tabled in the National Assembly in July 2013. The National Assembly subsequently amended Section 48 of the TJRC Act in December 2013, requiring that the TJRC report be tabled in Parliament “for consideration” and that implementation of the report commence immediately after such consideration. However, the National Assembly has, to date, neither considered nor acted on the report of the TJRC, despite calls by President Uhuru Kenyatta in March 2015 and a petition by the National Victims and Survivors Network (NVSN) in November 2015 and in urging the National Assembly to prioritize debate on the TJRC report. In its review before the UN Human Rights Council in 2015, Kenya was recommended and pledged to implement the TJRC report recommendations and provide reparations to victims and survivors.

Thus, as we observe this important Day, the State’s delay to adopt and implement the TJRC’s findings and recommendations remains a cause for anxiety and concern among victims of gross human rights violations, their families, communities and our nation at large. As underscored by the TJRC, the prolonged history of gross human rights violations and the State’s failure to provide redress and reparations for victims has resulted in persisting divisions among Kenyans on ethnic, regional, political and economic lines, and led to a lack of nationhood and public trust in political and governance institutions. The State’s continued delay to implement the TJRC report denies the country the opportunity to understand and address root causes of historical injustices and gross human rights violations, a situation that makes the Kenyan society susceptible to continued cycles of violence and gross human rights violations, as we continue to see in the context of general elections, resource-based conflict and tensions arising from grievances of marginalization and exclusion.

Nonetheless, victims and survivors of gross human rights violations are encouraged by the State’s initiation of a KShs. 10 billion Fund, which was unveiled by President Uhuru Kenyatta during his State of the Nation Address in March 2015, to provide restorative justice to victims of historical injustices. During the same address, President Uhuru Kenyatta apologized to victims of gross violations committed by the past three regimes, including the massacres of the post-poll violence of 2007.

Victims and survivors, civil society and development partners applaud the measures taken so far, specifically the move to put in place reparations Regulations, to make the Fund operational. The Office of the President, Office of the Attorney General, Kenya Law Reform Commission and Kenya National Commission on Human Rights have been working in consultation with the NVSN and Kenya Transitional Justice Network, with support from the Office of the High Commissioner for Human Rights and other development partners, to develop draft Regulations for the Reparations for Historical Injustices Fund. The draft Regulations propose the establishment of a governing structure to provide overall administration of the Fund, including a Board, Secretariat led by an administrator, and advisory reference group with representation from victims’ groups, state offices, independent commissions, civil society and key sectors of society such as women, children, youth, elderly persons, persons with disabilities, religious groups, private sector, and minorities and marginalized groups. The Regulations propose the provision of various reparation measures from the Fund including compensation and health rehabilitation services for victims of gross human rights violations resulting in loss of life and bodily integrity. These Regulations and proposed reparations framework once adopted will provide guidance for fair, transparent and non-discriminatory support to victims of injustices taking into account their vulnerabilities.

Victims and survivors today urge the State to hasten its steps and urgently finalize, gazette and implement the Regulations for operationalization of the Fund, which promises to demonstrate the State’s acknowledgment of the truth regarding gross human rights violations, and to provide victims with a considerable measure of redress, thereby restoring their dignity.

Background:

The right to the truth signifies the right of victims of gross human rights violations and their relatives to “know the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them”. The right to the truth is recognized as every victim of gross human rights violations’ undeniable and autonomous right, which must neither be limited nor denied by the State. It is a right that is directly linked to the duty and obligation of the State to protect and guarantee human rights, which consists of the State’s responsibility to conduct effective investigations and provide effective remedy and reparations for human rights violations. (Office of the High Commissioner for Human Rights)

The United Nations (UN) General Assembly proclaimed 24^th March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims on 21^st December, 2010. The day was introduced by the UN General Assembly, to honor the memory of victims of gross and systematic human rights violations and promote the importance of the right to truth and justice. The General Assembly invites Member States, international organizations and civil society to observe the day. The UN’s observance resonates with Kenya’s protection of human rights in its Constitution and long held recognition of the right to the truth concerning human rights violations as primarily demonstrated through numerous Commissions of Inquiry the government has set up to investigate causes, patterns and individuals involved in the commission, of gross human rights violations, and affected individuals and communities.

About KTJN:  KTJN was established in 2009 with the mission of collaborating towards the realization of transitional justice programmes (components) in Kenya comprising of: Truth-telling; criminal Justice; constitutional changes; administrative changes; addressing the plunder of public capital and  public land; gender justice; and addressing historical injustices which would include support for victims’ coalitions or groups. To ensure its inclusiveness, KTJN is open to membership by both individuals and groups with the criterion for general membership pegged on subscription to the mission and vision of the KTJN.

About NVSN: NVSN was formed following a resolution of the first National Victims Convention in October 2009. Its main objective is to enhance the capacities and facilitate sustained participation of victims and survivors of varied forms of historical injustices and gross human rights violations to effectively engage with truth-seeking, justice and reconciliation processes in Kenya. The Network’s membership consists of individuals and groups of victims and survivors of various historical injustices and gross human rights violations including the National Internally Displaced Persons Network, the Mau Mau War Veterans Association, Truth Be Told Network, Wagalla Resource and Advocacy Centre, victims of sexual and gender-based violence, torture survivors including victims of the Nyayo House torture chambers, February Eighteenth Revolutionary Army (FERA), 1982 Coup attempt and Sabaot Land Defence Force (SLDF) in Mt Elgon, ex- political prisoners and detainees, victims of historical marginalization, minorities groups, relatives and families of victims of unlawful killings and political assassinations, among many others.

Our attention has been drawn to the recent incidents of insecurity within North Rift where armed groups, bandits, and cattle rustlers have continued to viciously conduct raids on neighboring communities and as such have destroyed property, looted cattle and caused massive displacement of over 6000 people. These latest incidents are part of a long history of violence instigated by Politicians who have on numerous occasions incited the different communities against each other. These communities have been adversely affected as children are no longer able to access quality education as over 40 schools have been closed. These communities that require access to water and pasture to sustain their way of life have been left to wallow in poverty and have since sought temporary refuge in abandoned schools. The ease with which fire arms are accessed is equally a worrying trend. In the recent past, various media houses have reported that there are about 5000 to 6000 illegal firearms within the North Rift, a fact that was confirmed by Baringo County Commissioner Samuel Okwanyo during his brief to the Star Newspaper on the 1^st of March 2017.

These sporadic incidents of insecurity by armed groups, bandits, and cattle rustlers within the region have led to the death two politicians; Loyamorok member of County Assembly Fredrick Cheretei and Tiaty Parliamentary aspirant Simon Pepee Kitambaa, a teacher at Kapendusum Primary School Philemon Chetalam Kemei, two National Police Reservists, Ngororo Chief Thomas Rutop Chebor and Sosian Ranch Director Tristan Voospuy amongst others.

We note the Government’s recent declaration of 19 administrative locations as disturbed and dangerous as well as the current security operation that has seen the Government deploy 381 security personnel, recruited 230 National Police Reservists and employ the use of surveillance and air support to track down armed groups, bandits, and cattle rustlers with the stated aim of restoring peace within the region. We also acknowledge the Government’s undertaking to create a compensation scheme to address victims of these systemic gross human rights violations.

However, we the undersigned organization strongly urge and recommend the following to the Government of Kenya and all relevant state agencies:

1. That the current security operation should have a clear and comprehensive mechanism for disarmament.
2. That the National Government presides over  the transfers of the County Commissioners, Deputy County Commissioners, Officers Commanding Police Divisions and the Administration Police Commandants within the North Rift region for failing to comprehensively address this critical insecurity situation.
3.  That the Government gazettes more Police facilities within the North Rift region and deploy more Police officers to ensure that peace and stability prevail.
4. That ongoing investigations by the police to establish those responsible be concluded as a matter of urgency and lead to prosecution of those culpable in court regardless of the office or titles they may hold.
5. We demand the immediate recovery of all the 10,705 livestock stolen (Cows 2740, goats & sheep 7933, Donkeys 42) by armed groups, bandits, and cattle rustlers as soon as possible to enable the affected communities sustain their  livelihood.
6. We further demand that the compensation scheme to be undertaken by the government be transparent, consultative and comprehensive to cover all forms losses suffered and provide durable solutions to victims.
7. We demand that the National and County Governments, Parliament and the County Assemblies concerned investigate and initiate disciplinary action against any of their members linked with these sporadic incidents of insecurity. This should include suspension from responsibilities that could hamper investigations.

Lastly, we urge the Government, Civil Society Organizations, the Private Sector and members of the Public to put in place measures for assistance and protection of persons displaced and also to assist victims in creating a conducive environment for children to access quality education and better health services within the North Rift region.

Signed by
George Kegoro
Kenya Human Rights Commission

and

Kimosop Kipruto
Baringo Human Rights Consortium
On behalf of the PRWG-K consisting of: Kenya Human Rights Commission (KHRC) International Centre for Transitional Justice (ICTJ-K) International Commission of Jurists –Kenya (ICJ-K) Legal Resources Foundation (LRF) Kenya National Commission on Human Rights (KNCHR) Rights Promotion and Protection Centre (RPP) Federation of Women Lawyers in Kenya (FIDA-K) Coalition on Violence Against Women (COVAW) Centre for Minority Rights (CEMIRIDE) National Coalition of Human Rights Defenders (NCHRD) Kenyans For Peace, Truth and Justice (KPTJ), International Justice Mission (IJM), Amnesty International- Kenya (AI-K), Usalama Reforms Forum, Catholic Justice and Peace Commission (CJPC), Transparent International – Kenya (TI-K), Katiba Institute (K.I), Chemichemi Ya Ukweli and Independent Legal Medical Unit (IMLU).

The first-ever regional instrument on the right to redress for victims of torture and other prohibited ill-treatment has been adopted by the African Commission on Human and Peoples’ Rights (the African Commission), the institution responsible for the promotion and protection of human rights in Africa.

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