I. REQUEST FOR SUMMONSES TO APPEAR FOR WILLIAM SAMOEI RUTO,
HENRY KIPRONO KOSGEY AND JOSHUA ARAP SANG PURSUANT TO
ARTICLE 58(7) OF THE ROME STATUTE…………………………………………………………… 77
J. CONCLUSION…………………………………………………………………………………………………… 79
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A. SUMMARY OF THE CASE
1. As early as December 2006, WILLIAM SAMOEI RUTO (“RUTO”) and HENRY
KIPRONO KOSGEY (“KOSGEY”), prominent leaders of the Orange Democratic
Movement (“ODM”) political party, began preparing a criminal plan to attack those
identified as supporters of the Party of National Unity (“PNU”).1 JOSHUA ARAP
SANG (“SANG”), a prominent ODM supporter, was a crucial part of the plan, using
his radio program to collect supporters and provide signals to members of the plan
on when and where to attack. To reach their goal, RUTO, KOSGEY and SANG
coordinated a series of actors and institutions to establish a network, using it to
implement an organizational policy to commit crimes. Their two goals were: (1) to
gain power in the Rift Valley Province, Kenya (“Rift Valley”), and ultimately in the
Republic of Kenya, and (2) to punish and expel from the Rift Valley those perceived
to support the PNU (collectively referred to as “PNU supporters”).
2. Kenyans voted in the presidential election on 27 December 2007. On 30
December 2007, the Electoral Commission of Kenya declared that Mwai Kibaki,
presidential candidate for the PNU, had won the election. The announcement
triggered one of the most violent periods in Kenya’s history. The Prosecution will
present some of the incidents, identifying those who are most responsible.
3. Thousands of members of the network (“perpetrators”) cultivated by RUTO,
KOSGEY and SANG began to execute their plan by attacking PNU supporters
immediately after the announcement of the presidential election results on 30
December 2007. On 30‐31 December 2007, they began attacks in target locations
including Turbo town, the greater Eldoret area (Huruma, Kimumu, Langas, and
Yamumbi), Kapsabet town, and Nandi Hills town. They approached each location
from all directions, burning down PNU supporters’ homes and businesses, killing
civilians, and systematically driving them from their homes. On 1 January 2008, the
church located on the Kiambaa farm cooperative was attacked and burned with more
1 This is a coalition of parties including the Kenya African National Union (“KANU”), Ford‐Kenya,
Ford‐People, Democratic Party and the National Alliance Party of Kenya.
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than one hundred people inside. At least 17 people died. The brunt of the attacks
continued into the first week of January 2008.
4. All identified attacks occurred in a uniform fashion. Perpetrators gathered at
designated meeting points outside of locations selected for attack. There, they met
coordinators, who organized the perpetrators into groups with assigned tasks.
Perpetrators then attacked target locations. Some perpetrators approached on foot,
while others were driven in trucks, as had been previously arranged. SANG helped
coordinate the attacks using coded language disseminated through radio broadcasts.
5. In response to RUTO, KOSGEY and SANG’s planned attacks on PNU
supporters, as well as to deal with protests organized by the ODM, prominent PNU
members and/or Government of Kenya officials FRANCIS KIRIMI MUTHAURA
(“MUTHAURA”), UHURU MUIGAI KENYATTA (“KENYATTA”), and
MOHAMMED HUSSEIN ALI (“ALI”) developed and executed a plan to attack
perceived ODM supporters in order to keep the PNU in power.
6. First, under the authority of the National Security Advisory Committee, of
which MUTHAURA and ALI were Chairman and a member, respectively, the Kenya
Police, in joint operations with the Administration Police (“Kenyan Police Forces”),
were deployed into ODM strongholds where they used excessive force against
civilian protesters in Kisumu (Kisumu District, Nyanza Province) and in Kibera
(Kibera Division, Nairobi Province). As a consequence, between the end of December
2007 and the middle of January 2008, the Kenyan Police Forces indiscriminately shot
at and killed more than a hundred ODM supporters in Kisumu and Kibera.
7. Second, MUTHAURA, KENYATTA and ALI also developed a different tactic to
retaliate against the attacks on PNU supporters. On or about 3 January 2008,
KENYATTA, as the focal point between the PNU and the Mungiki criminal
organization, facilitated a meeting with MUTHAURA, a senior Government of
Kenya official, and Mungiki leaders to organize retaliatory attacks against civilian
supporters of the ODM. Thereafter, MUTHAURA, in his capacity as Chairman of the
National Security Advisory Committee, telephoned ALI, his subordinate as head of
the Kenya Police, and instructed ALI not to interfere with the movement of pro‐PNU
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youth, including the Mungiki. KENYATTA additionally instructed the Mungiki
leaders to attend a second meeting on the same day to finalize logistical and financial
arrangements for the retaliatory attacks.
8. As a consequence, the Mungiki and pro‐PNU youth attacked ODM civilian
supporters in Nakuru (Nakuru District, Rift Valley Province) and Naivasha
(Naivasha District, Rift Valley Province) during the last week of January 2008.
During these attacks, the attackers identified ODM supporters by going from door to
door and by setting up road blocks for intercepting vehicles, killing over 150 ODM
supporters.
9. The violence resulted in more than 1,100 people dead, 3,500 injured,
approximately 600,000 victims of forcible displacement, at least hundreds of victims
of rape and sexual violence and more than 100,000 properties destroyed in six out of
eight of Kenya’s provinces. Many women and girls perceived as supporting the
ODM were raped.
B. RELIEF SOUGHT
10. Pursuant to Article 58(1) of the Rome Statute, the Prosecution hereby applies
to Pre‐Trial Chamber II for the issuance of summonses to appear against RUTO,
KOSGEY and SANG. Upon investigation of the crimes committed in the territory of
the Republic of Kenya from 30 December 2007 through January 2008, the Prosecution
has concluded that there are reasonable grounds to believe that RUTO, KOSGEY and
SANG bear criminal responsibility under Article 25 of the Rome Statute for murder,
torture, deportation or forcible transfer, and persecution based on political affiliation
as crimes against humanity.
11. The Prosecution files this Application together with an Application for
summonses to appear for MUTHAURA, KENYATTA and ALI, arising out of its
investigation into the Situation in the Republic of Kenya. The two applications
concern crimes that are interlinked, allegedly committed to prevent government
actions or to retaliate against members of the opposition.
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12. If the summonses are issued, the Prosecution considers that it will be
necessary that the Chamber take into consideration the circumstances of both cases in
its ruling and to decide on both cases at the same time. In the event that the
Applications are granted and the charges are confirmed in both cases, the
Prosecution will request that the cases be joined and decided by the same Trial
Chamber.
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D. CONCISE STATEMENT OF THE FACTS PURSUANT TO ARTICLE 58(2)(c)
OF THE ROME STATUTE
16. The Rift Valley, one of eight provinces in Kenya, was the epicentre of violence
that followed the 2007 general election. It suffered the greatest number of victims,
including over 700 deaths, the largest share of the injuries, and approximately
600,000 forcibly displaced persons. The violence that erupted in the Rift Valley was
not spontaneous; rather, it was the product of planning and coordination led by
RUTO, together with KOSGEY and SANG.
17. RUTO and KOSGEY were both senior ODM politicians. RUTO was a member
of the five‐person ODM leadership structure called the Pentagon. KOSGEY was the
Chairman of ODM. RUTO and KOSGEY were running for re‐election for the position
of Member of Parliament (“MP”) in their respective constituencies. SANG, while not
a politician, was a prominent member of the community, due to his position as a
broadcaster on the most popular vernacular radio station, Kass FM. SANG was a
vocal supporter of ODM and its candidates.
18. In anticipation of the 2007 presidential election, RUTO, KOSGEY and SANG
created a plan to expel PNU supporters from the Rift Valley in the event that the
election were rigged. This plan would have the twofold effect of punishing PNU
supporters and removing PNU supporters from the Rift Valley to gain power by
creating a future pro‐ODM voting block.
19. To execute this plan, RUTO, with KOSGEY and SANG, created a Network of
perpetrators from existing structures in the Rift Valley (“the Network”). The
Network consisted of: pro‐ODM political figures; media representatives, particularly
SANG in his role as a prominent host on Kass FM; financiers; regional tribal Elders;
and former members and leaders of Kenyan police and military sectors.
20. In the year before the 2007 election, RUTO, KOSGEY and SANG organized the
Network to plan, coordinate and later execute attacks on perceived PNU supporters
in the Rift Valley. At a series of meetings, rallies and other events, they planned and
incited attacks, and distributed resources to subordinate members of the Network
who would physically execute the attacks.
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21. At these meetings, RUTO, with KOSGEY and SANG, coordinated the
Network by: (1) selecting Commanders to oversee specific areas in the Rift Valley, (2)
creating a hierarchy below each Commander, (3) coordinating transportation and
logistics, (4) coordinating the dissemination of meeting locations, (5) fundraising, (6)
distributing RUTO’s money and promising rewards for every PNU supporter killed
or property destroyed, (7) paying direct perpetrators, (8) identifying target areas, and
(9) providing guns, grenades and ammunition to the perpetrators to ensure that they
had the necessary resources to succeed. Members of the Network were indoctrinated
to believe that Kibaki’s administration planned to rig the presidential election, and to
attack groups perceived to support the PNU if the elections were rigged.
22. Kenyans voted in the presidential election on 27 December 2007. At 5:30 p.m.
on 30 December 2007, the Electoral Commission of Kenya (“ECK”) declared that
Kibaki had won the election. The circumstances of his victory were hotly contested
by ODM.
23. Immediately following the announcement of the presidential election results,
the Network began to execute attacks against PNU supporters in various locations in
Uasin Gishu and Nandi Districts, including Turbo town, the greater Eldoret area
(Kiambaa, Yamumbi, Haruma, Kimumu and Langas), Kapsabet town, and Nandi
Hills town, with the intent to expel them from the Rift Valley. The brunt of the
attacks occurred from 30 December 2007 through the first week of January 2008. The
crimes that are the subject of this Application occurred predominantly within a 25
kilometre radius of a house that RUTO owns in Sugoi (Uasin Gishu District), where
he held meetings to plan the attacks.
24. The Network’s attacks that are the subject of this Application occurred in a
uniform fashion. Perpetrators gathered at designated meeting points outside of
locations selected for attack, where they met their Coordinators. After the
Coordinators organized the perpetrators into groups with assigned tasks, the attacks
were executed. While some perpetrators approached on foot, trucks, previously
arranged, often drove them to designated points of attack. SANG used coded
language disseminated through radio broadcasts to help coordinate the attacks.
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25. After establishing roadblocks at all major roads around towns, including
Kapsabet town, Eldoret, Turbo town, and Nandi Hills town, perpetrators attacked
and burned properties previously identified as belonging to perceived PNU
supporters. They also killed some perceived PNU supporters. The attacks sent
hundreds to thousands of PNU supporters fleeing to nearby police stations and
churches for refuge. Perpetrators at roadblocks and those executing attacks
demanded identification exposing victims’ membership in ethnic groups believed to
support PNU. Those from the groups perceived to support PNU were attacked and
in some instances killed on the spot.
26. The Prosecution submits that on the basis of available evidence, and without
prejudice to other possible crimes within the jurisdiction of the Court, there are
reasonable grounds to believe that during the PEV, including but not limited to the
time period between 27 December 2007 and the end of January 2008, RUTO,
KOSGEY and SANG, committed the following crimes against humanity: murder
under Article 7(1)(a) of the Statute; deportation or forcible transfer of population
under Article 7(1)(d) of the Statute; torture under Article 7(1)(f) of the Statute; and
persecution based on political affiliation under Article 7(1)(h) of the Statute.
27. The Prosecution further submits that there are reasonable grounds to believe
that the requirements of direct/indirect co‐perpetration or of common purpose
criminal liability pursuant to Article 25(3)(a) or (d) have been met.
28. The Prosecution incorporates by reference Sections G.2, G.3, and G.4, below,
into the Concise Statement of Facts. These sections provide a more detailed
explanation of the Network, the planning meetings, rallies and other events, the
attacks, and the roles of RUTO, KOSGEY and SANG.
downloads
Ocampo’s Accusations on Haters of Peace
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