Calls for Greater ICC Effort in Kenya

Kenya’s attorney general is calling on the International Criminal Court in The Hague to do more to help his country’s own judiciary prosecute individuals accused of responsibility for mass violence five years ago.

The Hague court is bringing four of the alleged top perpetrators to trial, but investigations into thousands of lower-level suspects in Kenya itself have stalled, in large part because powerful political forces oppose this.

Speaking at a conference on international justice held in Nuremberg on October 5 and 6, Attorney General Githu Muigai said the International Criminal Court, ICC, should do more to support efforts to develop Kenyan judicial institutions, in the wake of a new constitution passed in August 2010.

Following a disputed presidential election in December 2007, almost two months of bloodshed left 1,100 civilians dead. Supporters of each of the opposing political forces targeted communities they associated with the other, so that the struggle descended into ethnic warfare.

When Kenya’s parliament failed to initiate investigations into the violence, the ICC prosecutor stepped in. Kenya thus became the first country where the ICC initiated its own investigation rather than waiting for cases to be referred to it either by the state itself, or by the United Nations Security Council.

The court has charged four individuals – Deputy Prime Minister Uhuru Kenyatta, former cabinet secretary Francis Muthaura, member of parliament William Ruto and journalist Joshua Arap Sang – with crimes against humanity, accusing them of orchestrating the violence.

In his speech, Muigai acknowledged that Kenya had missed an opportunity to build on the ICC process by failing to establish its own national tribunal to deal with other alleged perpetrators.

He said the Kenyan judiciary always intended to pursue those responsible for the violence, but parliament got in its way. Legislators twice rejected plans to set up a special tribunal which would handle international crimes, as opposed to the offences that ordinary courts deal with.

Sustained political opposition to the proposed tribunal has meant that no one has been charged in a Kenyan court with international crimes committed after the 2007 election.

Despite the ICC investigations, the suspects retained their positions until charges were confirmed. Kenyatta remains deputy prime minister, and he and his political rival Ruto are both campaigning for a presidential election due in March 2013.

The government has formally continued to cooperate with the ICC, but has also acted to obstruct the process. In April, a justice minister who supported the ICC process was replaced by a new one who said he did not plan to handle any matters relating to the Hague court. And apparently at Kenya’s instigation, the East African Legislative Assembly suggested the same month that the four cases should be tried in Tanzania, not at the ICC.

Muigai diplomatically described the constraints on the justice process as the “politics of reconstruction”.

“The Kenyan case is special and unique in more than one way,” Muigai said at the conference.

ICC’S ROLE IN DEVELOPING LOCAL COURTS

The ICC’s Office of the Prosecutor, OTP, says it is essential for the court to encourage “genuine national proceedings” that complement its own judicial process.

Observers of international justice, including the New York-based advocacy group Human Rights Watch, describe this as division of labour where the ICC would prosecute those held to bear the greatest responsibility for a given set of crimes, and the justice system of the state concerned would tackle cases of mid- and lower-level perpetrators.

According to Human Rights Watch, if this principle, known as “positive complementarity”, works as it should, states like Kenya would develop both the willpower and the judicial capacity to prosecute all international crimes by themselves.

In 2010, Kenya passed national legislation, drawing on the ICC’s founding Rome Statute, that amounts to a legal toolbox for the local prosecution of international crimes, for example war crimes and crimes against humanity. However, the current interpretation is that the legislation cannot apply retrospectively, and therefore does not cover the violence of 2007-08.

A committee led by Kenyan chief justice Willy Mutunga is due to publish a report on the prospects for establishing a special division of the high court which would try any future cases of war crimes or crimes against humanity.

There are analogies with the situation in neighbouring Uganda, which has developed its own judicial capacity in parallel with ICC investigations, in this case into the rebel Lord’s Resistance Army. Since the ICC issued indictments against rebel leaders in 2005, Uganda has incorporated the Rome Statute into its own legislation and set up a war crimes division at its high court.

But even without a dedicated tribunal, Kenyan courts could still prosecute some of the thousands of cases on police files. The problem is, observers say, is that they lack the skills and know-how to do so.

Aside from political obstructionism, Muigai was optimistic that individuals could be prosecuted for crimes that occurred in 2007-08, and called on the ICC to help bring local courts up to the required standard.

As evidence of Kenya’s willingness to move on prosecutions, Muigai pointed to the thousands of criminal cases still being assessed by a specially-appointed taskforce.

“This is why I emphasise the necessity [for the ICC] to promote local capacity,” he said. “It was never intended that the [ICC] will have primary jurisdiction over matters that come before it.”

Echoing Muigai, Neela Ghoshal of Human Rights Watch also called on the ICC to provide more support, in the shape of expertise.

“The Kenyan state could benefit from learning more from ICC investigators and prosecutors on how international crimes are investigated and prosecuted,” Ghoshal said, noting that of the few suspects who have been prosecuted in local courts, almost all of those convicted have been affiliated with Kenya’s Orange Democratic Movement party, ODM.

ODM is the coalition partner of President Mwai Kibaki’s Party of National Unity, PNU. The coalition was hammered together to end the fighting in 2008; before that, supporters of the two parties fought each other as the protagonists in the bloodshed.

“Personnel within the Kenyan justice sector, ranging from police investigators to judges, would benefit from further training on international crimes,” Ghoshal said. “It’s important for Kenya to observe how courts can handle cases neutrally, without regard to political affiliation.”

KENYA’S DIFFICULT RELATIONS WITH THE ICC

Besides lack of political will, Muigai said other factors had also held back the development of the judicial sector and with it the prospect of trying cases locally.

One of these factors was Kenya’s troubled relationship with the ICC, and specifically the OTP’s handling of cases. Muigai believes the ICC treated Kenya with suspicion even though the state was doing its best to deliver justice in trying political circumstances.

“The problem we have had, especially during [former prosecutor Luis Moreno] Ocampo’s time, is that it was not possible to sustain a professional dialogue with the court. I found some remarks attributed to [Ocampo] downright discourteous, patronising and disrespectful,” Muigai said. He was referring specifically to a comment by Ocampo at the start of the ICC investigation in 2009 that he would make “a world example” of Kenya.

Muigai told participants at the Nuremberg conference that he was optimistic that the relationship would get better now that a new prosecutor, Fatou Bensouda, was in place. Bensouda succeeded Ocampo in June.

''We have hope and a good working relationship with Madam Prosecutor. I would wish to see her do the repair work from where her predecessor left,'' Muigai said.

When IWPR contacted Ocampo about the attorney general’s view of his attitude, he said he had respected the Kenyan government from the very start.

“As the prosecutor, I worked to do justice in Kenya,” he said. “Justice includes respect for the victims, for the law, and for those allegedly responsible. From the beginning I respected the Kenyan government.”

GROUNDS FOR OPTIMISM?

Despite the barriers to delivering justice in Kenya, some analysts believe ICC intervention has already had a positive impact and established a strong foundation for trying international crimes locally.

Ghoshal says that in a highly politicised environment, key institutions and Kenyans generally have learned a lot from the ICC, particularly about judicial independence.

“During the confirmation of charges hearings [in September and October 2011], Kenyans observed impartiality at work,” Ghoshal said. “The judges clearly had no political bias for or against any particular suspect.”

Other commentators say that despite the failure to hold local trials, Kenyans are talking about the ICC and the principles behind it.

“When no one seems concerned or interested in prosecuting international crimes in Kenya, then perhaps one can say that complementarity might have failed,” Anna Kotzeva of the Netherlands-based Peace and Justice Initiative said. “I do not think that Kenya is near that point.”

Kotzeva said progress on delivering justice need not only be judged by the cases stemming from the 2007-08 violence; another measure would be Kenya’s ability to create deterrents to future international crimes, and prosecute perpetrators if they occurred.

“One important lesson that Kenya can take away from the ICC experience is that no one is beyond the reach of the law,” Kotzeva said, adding that the four suspects facing trial in The Hague will be remembered in Kenya “for many years to come”.

“Kenyans in positions of power and influence who participate in the perpetration of international crimes can no longer expect to evade responsibility for their actions,” she added.

Nzau Musau is an IWPR-trained reporter in Nairobi.