5 December 2014

Seven years ago, tens of thousands of people in Naivasha and Nakuru were targeted for no reason other than their ethnic identity. Men were beheaded in the streets. Human heads were paraded on sticks. Women were serially raped, and then doused in paraffin and set alight. Children were burnt alive. Houses, and tiny business premises were pillaged and destroyed in their thousands.

The surviving victims of those crimes have received no justice from the Kenyan criminal justice system. Thousands now live in abject poverty, uncompensated for the destruction of their homes, businesses and families.

The ICC gathered a considerable body of evidence concerning the crimes committed, and the identities of those most responsible. Nevertheless, the surviving victims have seen the collapse at the ICC of the prosecutions against all three of those identified by the ICC Prosecutor as the principal suspects. Those cases have collapsed in troubling circumstances. The Prosecution noted on 31 January 2014: "Mungiki members said to have interacted with [President Kenyatta] in person during the PEV were killed or forcibly disappeared in an apparent clean-up operation after the violence." The pre-trial period was marked by attempts to bribe and intimidate key witnesses. The Kenyan government's policy included promising co-operation while practising determined obstructionism. The government blocked access to relevant witnesses and evidence. President Kenyatta’s government, in particular, repeatedly defied clear and specific ICC requests to deliver cell phone and financial data of central relevance to the case against President Kenyatta.

It is regrettable that the victims have received almost nothing from the entire ICC process. While their Government mounted an enormous effort to derail the few prosecutions in The Hague, it did next to nothing to hold perpetrators to account for the crimes committed. It has given hardly any support or compensation to those who were attacked in Naivasha and Nakuru. The ICC’s Trust Fund for Victims can and should step in urgently and provide much-needed livelihood and counseling assistance to the victims of the post-election violence in Kenya.

The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC. The victims believe that the Prosecutor can do much more to bring at least some perpetrators to book. The challenge is to the Prosecutor not to further disappoint those victims.

* Fergal Gaynor is Counsel for the victims, /Prosecutor v. Uhuru Kenyatta/, International Criminal Court