Legal Commentary

On rape during the PEV

By Ory Okolloh

DNA Testing Services Kenya has sent a curious letter to O’Campo / the ICC arguing that  Kibaki, Odinga, Anyang Nyong’o, Elizabeth Ongoro, Mugabe Were & Major General Ali Mohammed are not culpable for mass rape incidents in Nairobi during the post-election violence period (an estimated 40,500 women and children were raped country-wide), because they have evidence that no one particular community was targeted in Nairobi when the rapes were being committed.   Therefore,  their argument goes, politicians /government officials who had control over those areas could not be culpable because the rapes targeted all communities – they use the Rwanda genocide case PROSECUTOR V. JEAN PAUL AKAYESU (ICTR-96-4-T) to support their case.

Beyond the fact that their legal argument is incorrect…Akayesu was found guilty of rape as genocide which would not be the argument in Kenya (argument would be rape as a crime against humanity) and for rape to qualify as a crime against humanity, you need to prove that it was widespread and systematic, that fact no ethnic group was targeted does not defeat the case…I’m curious about:

- the decision to come to the defense of those select individuals, shouldn’t DNA Testing and Nairobi Women’s Hospital (where many victims in Nairobi sought assistance) be at minimum advocates for truth-telling and not for exculpation?

- since DNA testing/Nairobi Women’s Hospital are the holders of critical DNA evidence would their bias (as is revealed in the letter) affect their cooperation with the ICC?

- this points to the perennial problem of poor government testing facilities when it comes to sexual assault cases in Kenya (all crime really), private companies like DNA Testing are filling the gap but at what cost to justice?

Full post as published by Kenyan Pundit on November 26, 2009 (boomark / email).