Situation in the Republic of Kenya in the Case of the Prosecutor v. Muthaura, Kenyatta, and Ali

In the Republic of Kenya, the results of an election were highly contested by two political groups: the Party of National Unity (PNU) and the Orange Democratic Movement (ODM). The groups were generally split along ethnic lines, with the Kikuyu supporting the PNU and the Kalenjin and Luo supporting the ODM. The dispute turned violent, with large numbers of civilians killed or displaced. The prosecutor of the International Criminal Court (ICC) charged the leaders of both groups with crimes against humanity and divided the case by political affiliation. Uhuru Kenyatta (defendant) was a PNU leader. The prosecutor alleged that, during the election violence, Kenyatta had committed crimes against humanity by working with a violent shadow group of Kikuyus called the Mungiki. The Mungiki murdered, raped, abused, and forcibly deported civilians in the Kalenjin and Luo groups, believing that these groups supported the ODM. Kenyatta and other PNU leaders allegedly kept the police out of the Mungiki’s way and provided other assistance with the attacks. Kenyatta challenged the charges, arguing that (1) a crime against humanity could occur only if the attack furthered the policy of a state or organization and (2) the Mungiki was merely a criminal street gang that did not qualify as the type of state or state-like organization international law required. Kenyatta argued that Kenya, not the ICC, should handle the Mungiki’s crimes. Evidence showed that the Mungiki had a hierarchical structure, with one man controlling all decisions and layers of power below him, and an effective system of violence to ensure compliance. Evidence also showed that the Mungiki was large, had a trained quasi-military wing, and was funded both internally and through outside sources. The group had de facto political control over some high-poverty areas in Nairobi, where it supplied security, electricity, water, and other services in exchange for involuntary taxation. The ICC’s pretrial chamber reviewed whether the Mungiki qualified as an organization under Article 7 of the Rome Statute.