Mau evictions: ICC receives petition against the State

The International Criminal Court says it has received a petition from a Kenyan lawyer who wants the Kenyan government investigated for crimes against humanity allegedly committed in during eviction of families from Mau Forest.

But the court is categorical that the next step will largely remain open as experts in the Office of the Prosecutor assess whether recent evictions fall within its jurisdiction in the first place.

DECISION

Mr Mark P Dillon, the OTP’s Head of Information and Evidence Unit at the ICC, confirmed receipt of the case in a signed letter dated August, 20, and addressed to the lawyer, Leonard Sigey Bett.

“We will give consideration to this communication, as appropriate, in accordance with the provisions of the Rome Statute of the International Criminal Court,” Mr Dillon states in the letter.

“Please note this acknowledgement letter does not mean an investigation has been opened, nor that an investigation will be opened by the Office of the Prosecutor.”

Mr Dillon however wrote, “As soon as a decision is reached, we will inform you in writing and provide you with the reasons for this decision.”

Mr Bett, a Nairobi-based had written to the ICC over the eviction of more than 40,000 people he argued were from one ethnic community, destruction of property and torching of houses.

In the petition, he argued that the evictions amount to forcible deportation, forcible transfer of civilian population and other inhumane acts which are contrary to Article 7 (d, I, and K) of the Rome Statute, the formative law of the ICC.

The Article in question lists several crimes against humanity as those committed "as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."

MANDATE

They include murder, extermination, forcible transfer of a population, enslavement and other "inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."

Mr Bett wants the ICC to hold senior government officers spearheading the eviction personally and criminally responsible for their actions, which he terms as crimes against humanity.

In the petition, Mr Bett states “the current situation is horrific, inhumane, and derogatory, with unmitigated conditions not even from the Judiciary with the later failing to stop the eviction despite petition and application from Kericho Governor Professor Paul Chepkwony.” 

“The current situation experienced in the Kenyan jurisdiction invokes your (ICC) authority under article 15 (1) of the Rome Statutes, which gives you the power to initiate investigations pro rio motto (on your own motion) on the basis of information on crimes within the jurisdiction of the court,” the petition reads in part.

The ICC, since its formation in 2002, has largely focused on crimes against humanity, war crimes and genocide.

It was in 2016 when the court said firmly that it was changing direction to strengthen dealing with cases of environmental nature.

It listed land grabbing, illegal dispossession of property, environmental destruction as well as improper exploitation of natural resources as areas it could prosecute individuals and government officials on.

MALI CASE

But those crimes could only be dealt with if they fall under its jurisdiction and fall under the wider definition of offences it has generally dealt with such as war crimes, crimes against humanity and genocide.

In September 2016, for instance, the ICC jailed for nine years Ahmad al-Faqi al-Mahdi, a Malian jihadist, for coordinating attacks on ten shrines and mosques listed as Unesco heritage sites.

The court had seen this as a war crime. 

Also, though not a UN Court, it generally may receive a referral from the UN Security Council or from a member state that has ratified the Rome Statute to investigate crimes.

Some 124 countries have signed and ratified the treaty but the court often comes only as an alternative to handle the cases.

Thus, the ICC may back out of the petition arguing local Kenyan courts could handle the cases.

The petitioner though wanted the court to, “look into violation and contravention of international law so that authorities who use excessive force and continue to execute the unlawful orders be held personally and individually criminally responsible, pursuant to the provisions of article 25 and 27 of the Rome Statute."

EVIDENCE

To back up his claim, the advocate has forwarded evidence to the Office of the Prosecutor, including various audio recordings from local vernacular radio stations and interviews with national television stations containing “hate speech”, that he says have catalysed the horrific expulsion of the families.

In his petition, Mr Bett states that on various occasions in the months of June, July and August, the government of Kenya— and specifically the Kenya Wildlife Service Kenya Forestry Service and County Commissioner Narok Mr George Natembeya— undertook to evict, destroy property, and forcibly expel nearly 40,000 families believed to be of one ethnic community— the Kipspigis.

“There has been no humanitarian intervention from the government and Kenya Red Cross Society to alleviate the situation faced by the civilian population,” reads the petition.

Petitioning the OTP to intervene, Mr Bett states, was informed by the fact that the Kenyan government had stayed in watch as these evictions continue unmitigated with the local leaders galvanising the Maasai population in an act of revenge on the communities currently residing in the Mau complex.

THE ISSUES

He stated that since the eviction kicked off, young children have suffered among others respiratory diseases due to cold climate experienced in the area, and a humanitarian crisis created due to torching of houses and displacement of the families by government security agents.

“We believe your office will swing into action to save life and prosecute the perpetrators of these heinous acts,” the petition reads in part.

Environment and Lands Court will in a month’s time rule on orders sought by 13 Mau settlers, seeking to have the evictions stopped by the government.

A myriad of issues— including legality of land title deeds held by the settlers, legitimacy of a cutline set by the government and recently abolished by Environment Cabinet Secretary Keriako Tobiko— are in contention.

Affected families bought land from five former group ranches— Enosookon, Reiyo, Sisiyan, Enakishomi and Nkaroni.

Should the OTP find in due course that the matter falls under their jurisdiction, then the Kenya government for the second time is likely to be put in the dock at the ICC.