On May 9, 2012 the Judicial Service Commission (JSC) mandated a study into the viability of establishing an International Crimes Division (ICD) in the High Court of Kenya.
The rationale behind this study was to finally address the question of mid-level and low level perpetrators of the 2007-2008 post-election violence.
The International Criminal Court was dealing with the so-called “high-level perpetrators” and a local system would have to prosecute the men and women on the ground level who conducted the raping, the killing, the maiming, the looting and the burning.
This study was originally a noble concept which sought to deviate from the erroneous national discussion that as a country, Kenya could either have a national prosecutorial process or an international one but not both.
The ICD was supposed to finally give justice to victims of this dark period and the report released on October 30, 2012 was highly anticipated.
Unfortunately, whilst the study rightfully recommends the establishment of an ICD, it deviates so drastically from the reasons of establishment that it risks setting up yet another white elephant.
Firstly, the report recommends that the ICD’s jurisdiction should not be limited to the international crimes committed during the post-election violence both in scope and time, but also future international crimes, including transnational crimes. These include human trafficking, piracy, money laundering, terrorism, trade in counterfeit goods and even cyber crime.
Not only are most of these crimes already addressed in the Penal Code and other subsequent legislation but also the High Court already addresses them. The division was to be a temporal solution to address a specific urgent temporal problem.
Such a broad jurisdiction and mandate would ensure the post-election crimes are never addressed. Secondly, the report on the proposed ICD completely fails to address the question on investigation. Admittedly investigation is not within the jurisdiction of the Judiciary in the strict sense.
However, in 2007 the three key issues that stood in the way of establishing a special tribunal for Kenya were lack of political will to address those crimes, lack of an applicable procedural and substantive law, and fatally, lack of investigative and prosecutorial capacity.
The national police, the chief investigator and in most cases prosecutor of crime, was seen both as victim and perpetrator of the post-election violence and as such could not be expected to investigate and prosecute in their own cause.
Kenya is a common law country where the Judiciary has to wait for cases to be brought to it. This means that where there are no investigations, there are no cases available for prosecution. If there are no cases investigated, what will the International Crimes Division of the High Court sit and adjudicate?
To its credit with regards to prosecution the report recommends a specialised unit within the office of the Director for Public Prosecutions to prosecute these offences.
However, not having addressed the questions concerning investigation as well as the fact that some police officers are also prosecutors leaves this matter unresolved.
Structurally, the recommendations of the Judicial Service Commission direct that the appeals from the ICD be channelled to the Court of Appeal and subsequently the Supreme Court.
Whilst this grants the accused person the right of appeal it completely undermines the integrity of the process. This is because whereas judges of the ICD will have undergone specialised training in international law and specifically on the crimes before them, the Court of Appeal and Supreme Court will not. Decisions therefore can be overruled based on unsound interpretation.
Finally, the report fails to satisfactorily address retrospectivity challenge. The International Crimes Act 2008 was enacted after the commission of post-election crimes and therefore could not be applied retroactively.
The report suggests that since the Constitution acknowledges all conventions ratified by the State as part of national law, then the Rome Statute was a part of Kenyan law from 2005, when Kenya ratified it.
As such perpetrators of the international crimes in 2007-2008 were therefore committing pre-existing crimes and can be prosecuted both under the Rome Statute as read with the Penal Code and should not be limited by the International Crimes Act. Not only is this convenient interpretation of the law but it is not completely sound.
Analogous situations indicate that retrospectivity is possible but it is best limited to a certain period of time and to specific offences.
Where there is political will, amendments can be made in law to make very specific provision to prosecute crimes that occurred at a specific time in the life of a nation so as to prevent impunity for crimes that shock the human conscience such as genocide for Rwanda.
The widening of the jurisdiction of the ICD to address in an open-ended manner all crimes of an international nature from 2005 to date will expose the justice system to abuse and undermine the rule of law.
The Judicial Service Commission is to be commended for this initiative. Indeed there is an urgent need to prosecute the perpetrators of the violations that occurred in 2007-2008 before yet another problem on the integrity of the available evidence arises. However, the solution created must fit the problem.
Whereas the report is not a policy paper for the proposed ICD it certainly is the conceptual framework and as such it needs to remain true to the victims of post-election violence for whom the ICD is to be established.
The writer works for the International Centre for Transitional Justice.