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.
"CONSTITUTIONALLY MISLEADING"
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.
ENTRENCH COMPLEMENTARITY
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.
POLITICAL STILLBORN
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.
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