International Justice Monitor

A project of the Open Society Justice Initiative

Witness: Scientific Evidence Not Necessary to Prosecute Sexual Crimes

An international investigator and prosecutor told the Kenyan High Court that to prosecute sexual crimes it is not necessary to have medical or physical evidence to corroborate the testimony of survivors of such crimes.

Maxine Marcus said there are examples of cases in Guatemala, at the Special Court for Sierra Leone (SCSL), and at the International Criminal Tribunal for the former Yugoslavia (ICTY) where accused persons were convicted on the basis of the testimony of survivors and witnesses alone.

Marcus made these observations while testifying before the Kenyan High Court on May 25. She was an expert witness for petitioners who want the government to be held responsible for its failure to protect its citizens against sexual and gender-based crimes during the violence that erupted … Continue Reading

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Witness: The State Must Protect Its Citizens, Even During Conflict

Rashida Manjoo, a former United Nations special rapporteur, told the Kenyan High Court the State had an obligation to protect the rights of its citizens even during a conflict.
Manjoo made her observation while testifying on May 23 in a case brought by survivors of sexual and gender-based violence committed during the conflict that erupted after the December 2007 election.

The case resumed after more than a month’s break. The last hearing was held on April 15 but it was closed to the public. The hearing before that, on April 14, was open to the public and a summary of it can be read here.

In the hearing of May 23, Manjoo was called to testify as an expert witness by the petitioners. … Continue Reading

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What Next, For the Victims of Kenya’s Post-Election Violence?

Please find below a commentary written by Emily Kenney, a consultant on transitional justice at UN Women. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

On April 5, 2016, Trial Chamber V of the International Criminal Court (ICC) decided by majority to terminate the case against William Samoie Ruto and Joshua Arap Sang. The defendants had been accused of crimes against humanity in relation to Kenya’s 2007-2008 post-election violence. While the ICC may never determine the identity of those responsible for these crimes (the Ruto and Sang decision is currently open for appeal, and the ICC’s investigation in Kenya is still technically ongoing), there is no doubt that the … Continue Reading

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Witness Tells Kenyan Court that Mental Health of People Displaced from their Homes Remains Fragile Years after Post-Election Violence

A psychologist told the Kenyan High Court that people displaced from their homes during the violence that followed the December 2007 presidential election continue to experience general anxiety or post-traumatic stress disorder years later.

Dinah Kituyi, a counseling psychologist, shared her conclusions during an April 21 hearing into a petition filed by 25 individuals displaced from their homes (IDPs) between December 2007 and February 2008.

Three organizations that assist IDPs are also part of the petition, which was filed in 2011. These are the Federation of Women Lawyers-Kenya, the Kenya Section of the International Commission of Jurists, and the Kenya Human Rights Commission.

The petitioners are asking the court to do several things, including declaring the government responsible for the violence and displacement … Continue Reading

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In Kenyan Court, Witnesses Say Post-Election Violence Victims Remain Traumatized

Two witnesses told the High Court of Kenya that victims of sexual and gender-based violence remained traumatized from the abuse they suffered during the violence that followed the December 2007 presidential election.

On Thursday, April 14, the witnesses testified before High Court Judge Issac Lenaola. During the post-election violence period, they worked for the Sexual and Gender-Based Violence (SGBV) Center at Kenyatta National Hospital, the country’s main referral hospital, and years after that.

Social worker and trauma counselor Theresa Njore and retired nurse Elizabeth Mukhisa were testifying in a hearing on a petition eight SGBV victims and four non-governmental organizations (NGOs) have filed.

The petitioners, which include the NGOs Coalition on Violence Against Women, Independent Medico-Legal Unit, the Kenyan Section of the International Commission … Continue Reading

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Dissenting Judge Said Majority Did Not Stick to Earlier Decision on “No Case to Answer” Motions

Judge Olga Herrera Carbuccia based her dissenting opinion on a previous decision the trial chamber made setting out the criteria it would use to assess any “no case to answer” motion in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Judge Carbuccia dissented from the majority decision of Trial Chamber V(a), which terminated the case against Ruto and Sang and vacated the three counts of crimes against humanity they had faced for their alleged roles in the violence that followed the December 2007 presidential election in Kenya.

The decision she referred to is from June 3, 2014 in which Trial Chamber V(a) set out the framework to determine the merits of a “no case to answer” motion.

In that June … Continue Reading

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Why ICC Judges Did Not Acquit Ruto and Sang

Judges of the International Criminal Court (ICC) have declined to acquit Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang because of interference with prosecution witnesses and attempts to meddle in the case.

In a 2-1 majority decision issued on Tuesday, April 5, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr terminated the case against Ruto and Sang and vacated the three charges of crime against humanity they were on trial for because the prosecution’s case had broken down and the evidence against the two was weak. Judge Olga Herrera Carbuccia dissented.

The judges made their decisions in response to defense applications arguing that Ruto and Sang did not have a case to answer following the conclusion of the prosecution’s case. … Continue Reading

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ICC Terminates the Case against Ruto and Sang

Trial judges of the International Criminal Court (ICC) have terminated the case against Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Trial Chamber V(a) decided to vacate the charges against Ruto and Sang in a 2-1 decision, said Jelena Vukasinovic, the ICC Chief of Office in Kenya. Vukasinovic was speaking at a news conference in Nairobi.

Wilfred Nderitu, the lawyer for victims, said that the victims will respect the decision.

“There is no doubt that it would come as a disappointment to the victims,” Nderitu said at the same news conference addressed by Vukasinovic. “I can say that I spoke [to the victims], and many of them had expected that this case would proceed to the defense case.”

The public … Continue Reading

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Trial Chamber Will Take Time to Reach Decision on “No Case to Answer” Submissions

This year two decisions have been eagerly awaited in the trial of the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

One has been on whether the statements of witnesses who recanted their remarks or failed to appear in court can be used as evidence. The Appeals Chamber announced its decision on the matter of witness statements two weeks ago.

Attention has now turned to the other eagerly awaited announcment: Trial Chamber V(a)’s decision on the defense’s “no case to answer” applications. The “no case to answer” submissions have been the subject of public interest in Kenya since early last year. This interest began after the last prosecution witness testified in the trial of … Continue Reading

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Appeals Chamber Reverses Decision on Witness Statements

The top chamber of the International Criminal Court (ICC) has determined that previously recorded statements of five prosecution witnesses who recanted those statements or failed to show up in court cannot be used as evidence in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Presiding Judge Piotr Hofmanski said the Appeals Chamber unanimously decided on Friday to reverse Trial Chamber V(a)’s majority decision made on August 19. The Appeals Chamber said the majority decision erred in determining that Rule 68 of the court’s Rules of Procedure and Evidence could be used to admit those statements as evidence.

Judge Hofmanski read a summary of the chamber’s decision in open court. He was the only judge in court and … Continue Reading

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