The ICD was to deal with mid and lower level perpetrators of crimes during election violence stemming back to 2008 and including crimes committed as far back as 1992 and 1997 election period, and its scope would inculcate the basic legal foundations of the International Criminal Court and the International Crimes Act.
Reverend Samuel Kobia expressed the recommendations adopted by the JSC concerning the establishment of the ICD as 6 key directives, the first and foremost being, “to ask the Chief Justice to establish an International Crimes Division in the High Court of Kenya to try both international and transnational crimes.”
It is with this very first recommendation that one should begin to challenge the legal principles behind the International Crimes Division. The challenge here is not that the division is to be set up by the Chief Justice, but that the JSC can give direction to an independent holder of a constitutional office such as the Chief Justice. Can the JSC order or direct the Chief Justice? In essence, the mandate and power of the JSC in setting up the ICD comes directly into question.
The second key recommendation underscores the overstepping of powers by the JSC : “to establish a way of facilitated independent prosecution unit to focus on international crimes”.
The proposal to set up an independent prosecution with a prosecutor not answerable to the Director of Public Prosecution is a clear indication of how once again, the JSC made a highly questionable recommendation, overstepping its powers in relation to prosecutions.
DPP Keriako Tobiko stated, “The proposal is at best a misnomer and at worst constitutionally misleading”.
The push by the JSC to form the ICD despite these dubious recommendations has been 2 years in the making, a push that can only be described as legally confusing at best and wholly political at its worst. Under the guise of complementarity, the ICD is a proposal that circumvents already existing structures in the judiciary that allow for prosecution and appeal processes.
Already, the JSC chose to ignore the retrospective principle of legality; a principle that states that a person cannot be tried for crimes which were not criminal offenses at the time the crimes were committed. Thus, to prosecute perpetrators of election violence from 1992 and 1997 under the international criminal act, or in line with the legal foundations of the ICC which itself did not exist at the time is a proposal to circumvent true justice for the sake of a political gain, which is to appear to be acting and prosecuting these crimes. Instead what should have been done is that the perpetrators of crimes should have been prosecuted for murders, rapes, assault and arson under existing legal structures in the penal code.
The claim that the ICD is supposed to entrench the principle of complementarity with the ICC is also quite dubious. In a side meeting at the ICC Assembly of State Parties (ASP) last year, Prof Alex Whiting clarifed the necessity of genuine efforts to prosecute at the national level in states.
“It is much easier for high, senior leaders to resist the work of the international court, to denigrate it, to slow down, to refuse to co-operate if there are no other prosecutions going on. Put otherwise, imagine in these countries if lower level and mid-level perpetrators were being prosecuted that would put an enormous pressure on the government to co-operate with the higher level accused,” he said.
In its report on the establishment of the International Crimes Division, the National Council for the Administration of Justice cautioned: “For the ICD to have credibility among Kenyan public and international community, it must be made clear right from the outset that it is not in any way meant to circumvent the ongoing trials of prominent Kenyans.”
"SAD AND PAINFUL TRUTH"
When it comes to the probability of prosecution of cases from 2008, the DPP has made it quite clear that he cannot move further. In 2012 he set up a task force agency to review over 5000 pending post-election violence cases. Out of 5000 cases, only 1000 could proceed to trial and these are the cases currently being handled by the DPP, leaving nearly 4000 cases which lacked sufficient evidence or which were botched in the investigations conducted. Keriako Tobiko quite literally broke the hearts of thousands when he announced the truth behind this failure in prosecutions.
“The sad and painful truth therefore is that at present there are no cases arising out of the 2007/08 PEV that can be prosecuted before the ICD,” he said.
If cases from the 2007/08 PEV cannot be prosecuted at the International Crimes Division, one must ask then what is the true purpose of the ICD? Why is there need to have a special division to deal with transnational crimes such as money laundering when already there are sections of the Judicial process that deal with these crimes, from the magistrate’s level all the way to the High Court?
NOT WHOLLY CONSIDERED
Some more disturbing facts arise when one considers the participation of the public in consultations concerning the establishment of the court. The JSC claims that they engaged the civil society in the consultation phase but this appears not to have been done in a competent manner.
“Recommendations made by the CSOs were not wholly considered in the final report of the Judicial Service Commission. For example, the scope of crimes to be handled by the ICD is too wide because it is seeking to try trans-national and international crimes as opposed to focusing on international crimes.” Edgar Kavulavu, programme officer ICJ-Kenya.
The sad reality is that rather than strengthening already existing processes and structures of the judiciary especially in prosecutions and investigations, the Judicial Service Commission decided to create a new division that will inherit the very same problems that the judiciary is already labouring with. What remedy is there for the victims and survivors of the post-election violence in 2008, when even the police who are accused of committing crimes are expected to investigate themselves?
It is sad to state, but the International Crimes Division and its proposed framework may indeed be a white elephant; it certainly cannot deliver justice in the 4000 PEV cases that are un-prosecutable.
A lot of time, money and effort has thus been put into what looks like just smoke and mirrors; a political stillborn whose intention was to create the appearance of complementarity while utilizing dubious methods to create the ICD.
For the victims, there is now dwindling hope for justice; their options are now limited to the Truth, Justice and Reconciliation report, public interest litigation cases such as the one initiated by survivors of sexual and gender based violence (SGBV) and finally, to pray fervently, that the government can find a way to be ethnically neutral and dispense compensation to all those who are Internally Displaced in a fair and equitable manner.
As it is, just considering the possible outcome of these options is depressing. In this regard, the JSC should be held answerable to the Kenyan public on its actions concerning the International Crimes Division.