INTRODUCTION

As Nigeria, inches closer to its election on 23rd February 2019, some sectors and interest groups have expressed fears about the possibility of electoral violence occurring during and after the elections. A Special Report published by the United States Institute for Peace relied on more than two hundred interviews conducted in March and April 2018 in eight states and the Federal Capital Territory, to identify the risks of election violence for Nigeria’s 2019 elections and also provided recommendations for Nigerian authorities and international donors supporting the electoral process to help in reducing these risks. Also, according to a Report by Crisis International, risks of violence appear to be highest in six states, namely Rivers, Akwa Ibom, Kaduna, Kano, Plateau and Adamawa. It also chronicles the history of election violence in past elections in Nigeria, and also offers recommendations to both the Nigerian government and its foreign partners for mitigating the risks.

From ICC Jurisprudence, violence experienced during and after elections may be on such a scale that it fulfills elements of a crime against humanity. In a statement by the Prosecutor of the International Criminal Court, Fatou Bensouda, on the pre-election violence in the Democratic Republic of Congo, she observed that experience in other countries has demonstrated that when passions run high during elections and people do not act with restraint, this may lead to large-scale crimes within the jurisdiction of the ICC and in such a case, her Office will not hesitate to take action in accordance with the criteria defined by the Rome Statute.

She also warned that anyone who incites or participates in mass violence, by ordering, soliciting, encouraging or otherwise contributing to crimes within the jurisdiction of the ICC is liable to prosecution before the Court. She reiterated her determination to investigate such crimes and to prosecute perpetrators when conditions as defined by the Rome Statute are met. She had equally issued such a caution in February 2015 in a statement about the escalating violence in Nigeria prior to that election, stressing that the conduct and outcome of elections in Nigeria, free from violence, will not only prevent further instability in the country, but will also send a clear message that electoral competition does not have to result in violence and crimes that shock the conscience of humanity. It is important to remember that Nigeria remains one of the “situation” states, still under preliminary examination by the Office of the Prosecutor even though the focus is on alleged crimes against humanity or war crimes committed in the Niger Delta, the Middle-Belt States and in the context of armed conflict between Boko Haram and Nigerian security forces in Nigeria.

ICC CASES ON ELECTORAL VIOLENCE AS A CRIME AGAINST HUMANITY

Two cases of crimes against humanity in an electoral context have been brought before the ICC – concerning Kenya in 2007 and concerning Cote D’Ivoire in 2010. This brief contribution merely summarizes the background of these cases, two of which were terminated via a no-case to answer submission by the defendants. A third case related to the same Cote D’Ivoire election violence is still pending before the Court.

Subsequent posts on this topic will examine the concluded cases which contain so much insight on the global practices on “no case submissions”, excellent obiter dictum on immunity of state officials from prosecution and a deft and intelligent handling of the African concerns about the relationship of Africa with the ICC, etc.by a Nigerian jurist, Judge Eboe-Osuji

On the eve of the 2019 elections, it is appropriate to caution ourselves to stay within the protective ambits of the law, for though the wheels of justice may grind slowly, they indeed grind surely. With the determination of the ICC to prosecute those accused of the most serious crimes of concern to the international community, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression, we can be sure that sooner than later, once there is sufficient evidence to satisfy the elements of these offences, those who commit or instigate crimes that shock the conscience of humanity, will ultimately be brought to book, even if municipal law is unable or unwilling to bring them to justice

ELECTORAL VIOLENCE IN KENYA 2007 – IN THE CASE OF THE PROSECUTOR v. WILLIAM SAMOEI RUTO AND JOSHUA ARAP SANG ICC-01/09-01/11

According to a Department for International Development (DFID) publication on the Elections in Kenya in 2007, “the pattern of election violence following the 2007 elections occurred in three discernable waves. First, there was spontaneous looting by youths in the slums of Nairobi and Kisumu of government buildings and of the shops and houses of Kikuyu families and Party of National Unity (PNU) supporters after the announcement of the election results. Second, violence organised in part before the election by opposition and tribal leaders as a response in the event of Kibaki’s winning the election. Third, reprisal attacks, organised by government supporters and Kikuyu militias that mainly targeted migrant workers thought to be opposition supporters in parts of the Rift Valley Province, Central Province, and Nairobi slums. The police also were responsible for much of the violence, either by using excessive force to deal with protesters or choosing not to prevent violence. Over 1,200 people were killed in the election violence and as many as 350,000 people displaced. The violence disrupted crop production and transport, resulted in a sharp economic downturn, an 80% reduction in tourism revenue, and a rise in the price of basic goods. The violence also entrenched social fragmentation between ethnic groups in the areas hardest hit by the violence.”

The Kenya National Dialogue and Reconciliation Accord established two commissions concerning elections – the Commission of Inquiry into the Post-Election Violence (CIPEV) (Waki Commission) and the Independent Review Commission (IREC) (Kriegler Commission).

The Waki Commission identified 1,133 deaths, 3,561 injuries, and 117,216 instances of property destruction, and among other recommendations, principally recommended that a special Kenyan tribunal be established to prosecute the perpetrators of violence.

The ICC’s Office of the Prosecutor received information that crimes against humanity had occurred in the 2007-2008 post-election violence and on November 5, 2009, the Prosecutor at the time, Lois Moreno Ocampo, notified the President of the Court of its intention to investigate the situation in Kenya. On 31 March 2010, Pre-Trial Chamber II granted the Prosecution’s request to open an investigation into alleged crimes against humanity in Kenya. Pre-Trial Chamber II confirmed the charges against Mr. Ruto and Mr. Sang and committed them to trial, which started on 10 September 2013.

Mr. Ruto was accused of being criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of: murder (article 7(l)(a)); deportation or forcible transfer of population (article 7(l)(d)); and persecution (article 7(l)(h)), while Mr. Sang was accused as an indirect co-perpetrator, of having otherwise contributed (within the meaning of article 25(3)(d) of the Rome Statute) to the commission of the same crimes against humanity.

The Pre-trial Chamber, in its confirmation found that, immediately after the announcement of the results of the presidential election and specifically from 30 December 2007 until 16 January 2008, an attack was carried out – following a unified, concerted and pre-determined strategy by different groups of Kalenjin people, in specified locations. That the attack allegedly targeted the civilian population, namely the Kikuyu, Kamba and Kisii ethnic groups, which were perceived as Party of National Unity (PNU) supporters. That the attack resulted in human casualties, displacement of persons, looting and burning of houses and business premises. That there was a plan to punish PNU supporters in the event that the 2007 presidential elections were rigged, which allegedly aimed at expelling them from the Rift Valley, with the ultimate goal of creating a uniform Orange Democratic Movement (ODM) voting block. In order to implement the plan agreed upon, a network of perpetrators has been allegedly established with the purpose of evicting members of the Kikuyu, Kisii, and Kamba communities because they were perceived as PNU supporters. The Network was allegedly under responsible command and had an established hierarchy. The network possessed the means to carry out a widespread or systematic attack against the civilian population. That, William Ruto provided essential contributions to the implementation of the common plan by way of organising and coordinating the commission of widespread and systematic attacks that meet the threshold of crimes against humanity, in the absence of which the plan would have been frustrated. That, Joshua Arap Sang, by virtue of his influence in his capacity as a key Kass FM radio broadcaster, allegedly contributed in implementation of the common plan by: (i) placing his show Lee Nee Eme at the disposal of the organisation; (ii) advertising the organisation’s meetings; (iii) fanning violence by spreading hate messages and explicitly revealing a desire to expel the Kikuyus; and (iv) broadcasting false news regarding alleged murder(s) of Kalenjin people in order to inflame the violent atmosphere.

On 5 April 2016, Trial Chamber V(A) decided, by majority, that the case against William Samoei Ruto and Joshua Arap Sang was to be terminated, without precluding new prosecution in the future either at the ICC or in a national jurisdiction. The majority of the Chamber, after hearing the “no case to answer” submission of the defendants, and having concluded that the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused, also concluded that a judgment of acquittal was not the right outcome, but only vacation of the charges and discharge of the accused. This decision has not been appealed.

One of the reasons for the success of the “no case to answer” motion, was the fact that the rules of procedure had been amended during the proceedings and therefore some of the prosecution’s evidence were no longer admissible because of their prejudicial effect on the defendants. Equally widespread witness interference and political intimidation of witnesses tainted the trial and made it difficult to have reliable evidence.

ELECTION VIOLENCE IN COTE D’IVOIRE IN 2010 – IN THE CASE OF THE PROSECUTOR v. LAURENT GBAGBO AND CHARLES BLÉ GOUDÉ No. ICC-02/11-01/15

According to the UN-certified election results of the 2010 Cote D’Ivoire presidential election former Prime Minister Alassane Ouattara won the run-off with 50.1 percent of the vote, while President Laurent Gbagbo received 49.9 percent of the vote. Gbagbo appealed the results to the Constitutional Council and the Council nullified the results in seven northern departments, ending up with Gbagbo getting a 51.5 percent victory. However, this decision was widely disputed by the international community. All the proposals by Gbagbo including establishing a Government of National Unity, and an international assessment of the election, were all rejected by the Economic Community of West African States (ECOWAS), other international stakeholders such as the United States, and the winner Ouattara.

The ICC case involves targeted acts by security forces, under the command of Gbagbo against electoral opponents, including the abduction of opposition neighborhood leaders, the murders of opposition supporters, and gang-rapes of women opposition vote mobilizers, which acts are alleged to have resulted in 3,000 fatalities and 150 rapes.

On 3 October 2011, the Pre-Trial Chamber judges granted the Prosecutor’s request to open an investigation with respect to alleged crimes within the jurisdiction of the Court committed in Côte d’Ivoire since 28 November 2010, as well as with regard to crimes that may be committed in the future in the context of the same situation in this country.

On 12 June 2014, Pre-Trial Chamber I confirmed four charges of crimes against humanity (murder, rape, other inhumane acts or – in the alternative – attempted murder, and persecution) against Laurent Gbagbo, while on 11 December 2014, Pre-Trial Chamber I confirmed the same four charges of crimes against humanity against Charles Blé Goudé.

On 11 March 2015, Trial Chamber I joined the two cases against Laurent Gbagbo and Charles Blé Goudé and the trial opened on 28 January 2016. On 4 June 2018, the Chamber declared that that the presentation of the evidence of the Prosecutor and on 3 August 2018, the Defence of Charles Blé Goudé filed a No Case to Answer Motion.

On 15 January 2019, Trial Chamber I, by majority, Judge Herrera Carbuccia dissenting, in an oral judgment acquitted the defendants from all charges of crimes against humanity allegedly committed in Côte d’Ivoire in 2010 and 2011. A fully reasoned decision in writing is expected in due course. On 1 February 2019, the Appeals Chamber set conditions to be imposed on the defendants upon their release to a State willing to accept them on its territory and willing and able to enforce the conditions set by the Chamber.

SITUATION IN THE REPUBLIC OF CÔTE D’IVOIRE- The Prosecutor v. Simone Gbagbo ICC-02/11-01/12

The warrant of arrest against Ms. Gbagbo was unsealed on 22 November 2012. Ms. Gbagbo is accused of being responsible, within the meaning of article 25(3)(a) of the Rome Statute, for the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts committed in the territory of Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011.

On 30 September 2013, Côte d’Ivoire challenged the admissibility of the case against Simone Gbagbo, arguing that a case against the same person for the same crime was being prosecuted at the national level.

On 11 December 2014, the Pre-Trial Chamber issued its decision rejecting Côte d’Ivoire’s Admissibility Challenge on the grounds, among others, that Côte d’Ivoire had not demonstrated “that the case against Ms. Gbagbo alleged in the proceedings before the Court is currently subject to domestic proceedings within the meaning of article 17(1)(a) of the Statute”.

On 17 December 2014, Côte d’Ivoire appealed Pre-Trial Chamber I’s decision. The Appeals Chamber rejected Côte d’Ivoire’s argument regarding the alleged violation of the principle of complementarity.

CONCLUSION

The 2019 elections may well be, Nigeria’s finest and defining moment. We can, just as the ICC Prosecutor has adviced, through the conduct and outcome of elections in Nigeria, free from violence, not only prevent further instability in the country, but also send a clear message that electoral competition does not have to result in violence and crimes that shock the conscience of humanity.

The ICC is committed to ensuring that the most serious crimes of concern to the international community must not go unpunished and ensuring their effective prosecution. The ICC is equally determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes. It is the dream of every well-meaning individual to have a world where no-one will hurt his neighbor and peace and progress will be the hallmark of our sojourn on this earth. Let us all put our shoulders to this task and show that we love ourselves, as we start off with a peaceful and civilized election on the 23rd February 2019

“Every transgression and disobedience receives a just recompense of reward, except with those who truly love themselves. – Oscar Auliq-Ice St. Wirth

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