Decision of the African Commission on Human and Peoples’ Rights on Seizure
Communication 464/14 –Uhuru Kenyatta and William Ruto (represented by
Innocence Project Africa) v. Republic of Kenya
Summary of the Complaint
1. This Complaint was received by the Secretariat of the African Commission on
Human and Peoples’ Rights (the Secretariat)on 19 February 2014, filed by
Innocence Project Africa (the Author), acting on behalf of Uhuru Kenyatta
and William Ruto, the President and the Deputy President respectively of
the Republic of Kenya (the Victims).
2. The Complaint is submitted against the Republic of Kenya (the Respondent
State), State Party to the African Charter on Human and Peoples’ Rights (the
African Charter).1
3. The Author avers that the Complaint is a public interest application, and
therefore, the Author has legal standing and capacity to bring this cause of
action which is seeking to protect the sovereignty of the Respondent State, the
African Charter, as well as the civil liberties and constitutional rights of the
Victims on the legality of their indictment by the International Criminal
Court (ICC).
4. The Author urges the African Commission on Human and Peoples’ Rights
(the Commission) to act with speed and urgency to restrict, prohibit and
restrain the Respondent State from violating and denying the Victims their
constitutional rights and the right of being tried by a “jury of their peers” in
their own country, assuming without admitting that they committedany war
crimes.
5. TheAuthor contends that the Respondent State as a member of the African
Union (AU) has an obligation to protect its citizens. The Respondent State will
be in violation or has violated the Decision of the Assembly of Head of State
and Government on Africa’s Relationship with the ICC2 by continually
cooperating with the ICC to “trample under” the individual and
constitutional rights of the two public officialsand it defeats the fight to
eradicate all forms of colonialism from Africa.
6. The Author submits that the institutions within the Respondent State which
are responsible in “aiding and abetting the violations” of the rights of the
Victims are the Parliament, Ministry of Justice and the Ministry of Foreign
Affairs. The reason being that Parliament failed to set up an independent
inquiry to investigate and identify the actual perpetrators of the 2007 post1The Republic of Kenya ratified the African Charter on 23 January 1992.
2http://www.iccnow.org/documents/Ext_Assembly_AU_Dec_Decl_12 Oct 2013.pdf (accessed on 02
March 2014)
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elections violence for possible prosecution; Ministry of Justice failed
todeliberately initiate a credible and independent inquiryand the Ministry of
Foreign Affairsfailed to make the necessary representation before
international or regional bodies.
7. The Author states that there has been no official complaint from the
Respondent State against any of its citizens especially the Victims therefore, it
is doubtless “sickening” that the Respondent has allowed the ICC to assume
its sovereign responsibilities of becoming the final arbiter of judicial matters
for crimes allegedly committed on Respondent State’s soil.
8. The Author avers further that the action of the ICC to initiate an investigation
propriomotu is based on information gathered from private individuals, which
has the potential to be prejudicial, sentimental subjective and biased. Further
the purported indictment for war crimes and crimes against humanity against
the Victims is nothing but a “fishing expedition” as demonstrated by the
recent pronouncement by the ICC that it does not have sufficient evidence to
proceed with trial and therefore needs further investigation although the
Respondent State knew of such “charade” by the ICC or had reason to know,
it did nothing absolutely to defend the rights of its two citizens.
9. The Author avers further that lack affirmative action taken by the Respondent
State to protect the rights of the Victims as provided for under its
Constitution, shows clearly that the ”Respondent is part of the ploy” or is
aiding and abetting the ICC to unduly violate the rights of the Victims.
10. The Author alleges that the Respondent State is responsible for the public
humiliation, harassment and “demonization” the Victims have been
subjected to whilst aware that the Victims are innocent, with the right to be
presumed innocent until the contrary is proven. Moreover, it is alleged that
the charges are politically motivated.
11. The rights allegedly violated by the Respondent State are rights to a free and
fair trial by a ‘jury of their peers’ and failure on its constitutional powers to
establish an independent commission or tribunal to investigate alleged
human rights violations and extra-judicial killings that occurred post 2007
elections.
12. The Author alleges that in the effort to exhaust local remedies, the
Government Institutions of the Respondent State were engaged, and
requested to take corrective actions to protect the rights of the Victims
without success.
13. The Author states that the Complaint has not been referred to any other
international settlement body.
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Articles alleged to have been violated
14. The Author alleges violation of Articles 2, 3, 4, 5,6, 7, 12, 14, 16, 19, 20(1) and
28 of the African Charter.
Prayers
15. The Author requests the Commission in accordance with Rule 79 of its Rules
of Procedure to issue:
a. An order as specifically provided for by law for the Respondent State
to honour, respect and abide by the recent AU denunciation of the
ICC and stay all further engagements, actions and communications
with the ICC;
b. An Interim Order, when necessary or at the volition of the
Commission given the urgency and severity of the matter, to urgently
hear this matter and make the necessary determination as in keeping
with law;
c. Order the Respondent State to adhere to and abide by the tenets, spirit
and intent of its own Constitution and thereby enact the requisite
legislation for the creation of an independent body or commission
that will investigate and prosecute, if any, alleged violators of any
crimes committed under the Rome Treaty that was initially ratified
by Parliament and domesticated as part of its laws and
d. Grant unto Applicant all and any further relief, which although not
specifically pleaded herein this Application,
but which the
Commission may deem just, legal and equitable as in keeping with the
rules of the Commission and other applicable international human
rights instruments
Procedure
16. The Secretariat received the Complaint on 10 January 2014 and acknowledged
receipt of the same on 16January 2014. After review of the Complaint, the
Secretariat discovered that the Complaint was unclear, and therefore wrote a
letter requesting clarification on 11 February 2014. The Secretariat received an
amended copy of the Complaint on 19 February 2014, and acknowledged
receipt of the same on 26 February 2014.
Analysis of the Commission on Seizure
17. The Commission finds that the Complaint contains disparaging and insulting
language, in contravention of Article 56(3) of the African Charter, which sets
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out the basis on which the Commission shall consider Communications which
are submitted to it under Article 55 of the Charter.
18. The Complaint contains expressions such as: “Sickening”; “Charade”; “the
Respondent is part of the ploy”; “trample under”; “fishing expedition”;
“demonization” which in the view of the Commission are disparaging and
insulting.
19. In addition, the Author has failed to indicate any steps taken to exhaust
domestic remedies nor provided grounds alleging the impossibility or
unavailability of domestic remedies as provided under Rule 93 (2) (i).
Complaint merely addressed Rule 93(2)(f) on ‘public authority that has taken
cognisance of the alleged situation alleged’.
20. Further the Author has failed to show a link between the Articles of the
African Charter allegedly violated and the account of act or situation
complained of, therefore, failing to reveal a prima facie violation of the African
Charter.
21. To conclude, the Commission is of the view that for a Complaint of this
nature, consent of the Victims should have been sought and signatures of the
Victims placed on the Complaint prior to its submission to the Secretariat.
Decision of the Commission on Seizure
22. Based on its analysis, the African Commission on Human and Peoples’ Rights
decides not to be seized of this Communication because it does not comply
with Article 56 of the African Charter and does not fulfil the criteria for
seizure provided under Rule 93 (2) of the Commission’s Rules of Procedure.
Done in Banjul, The Gambia this 15thExtra-Ordinary Session held from 07 to 14
March 2014
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