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The ICC Offers a Glimmer of Hope for Justice in Kenya

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Despite ongoing calls to end the widespread culture of impunity in Kenya, justice has not been at the top of the government's agenda in recent years. To date, no one has been charged with the killing of any of the 1000-plus people who died during the post-election violence that erupted after the disputed election at the end of 2007. Kenya promised to set up its own courts and tribunals to prosecute the offenders, but failed to do so. Now the International Criminal Court (ICC) has taken the lead. On the 30th of March, ICC Prosecutor, Luis Moreno-Ocampo, got permission from the Court's Pre-Trial Chamber to proceed with investigations of a number of powerful Kenyans suspected of inciting and supporting the violence. Victims hoping for justice may finally have something to feel happy about.

 

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The decision to authorise the investigation represents a bold step in the history of the Court. It is the first time that the ICC Prosecutor has used his proprio motu powers under Article 15 of the Rome Statute, which allow him to decide independently to launch an investigation in respect of international crimes under the Court's jurisdiction. Previous investigations have been initiated only at the specific request of a State Party to the Court, or pursuant to authorisation granted by the UN Security Council. Mr. Ocampo seems confident. He is said to have more than enough evidence, most of which was gathered at the time of the violence by human rights workers, diplomats, private security officials and NGOs. If he decides to bring charges, Kenya will become the fifth situation before the ICC.

 

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The Court's decision to authorise the investigation has been eagerly awaited for two years. It has also been welcomed by victims and friends of justice, including the former UN Secretary General, Kofi Annan who in late 2008 handed the Prosecutor a list of persons considered to be most responsible for the crimes committed during the post-election violence.

 

Kenya is a signatory to the Rome Statute that established the ICC and is one of only four African states to domesticate the Statute. On paper, the country seems ready and able to tackle impunity for international crimes. In practice it has done very little. In 2008, it established a Truth, Justice and Reconciliation Commission (TJRC), which is tasked to investigate human rights violations and other historical injustices that occurred from 1963 - 2008. However, its mandate specifically excludes the post-election violence. Moreover, the TJRC is currently mired in controversy that has rendered it almost moribund. In particular, civil society in Kenya has questioned the moral authority of its Chairperson to lead a process that would uncover historical injustices that he may have been part of. Its Deputy Chairperson has resigned and all Commissioners declared a vote of no confidence in the Chairperson and called on him to resign. Efforts to establish a Special Tribunal to prosecute perpetrators of post-election violence crimes have also floundered. As a result, many Kenyans have lost faith in their government's political will and ability to end impunity for these serious crimes. They are now looking to the ICC as the most feasible option.


However, several possible snags could trip up the process. Most serious is the lack of domestic law enforcement and criminal justice capacity (and political will) to support the ICC investigation. The ICC does not have its own law enforcement capacity and therefore relies almost entirely on domestic investigative support from countries where it undertakes its work. A related challenge is the protection of witnesses, many of who are clearly at risk. And despite notable recent policy improvements, Kenya's witness protection capacity remains limited, and politically infiltrated. This is a serious concern as no prosecution is possible without witnesses willing to tell their stories.


Then there are the political complexities. Despite a few politically correct statements of support for the Court from Kenya's leaders, the real extent of this support remains uncertain. Another important political consideration relates to the timing of the process. The ICC's timetable means that trials would take place amid Kenya's next elections. The risks are obvious. Another challenge for Ocampo is who to pick for prosecution. He is investigating 20 suspects, but has indicated that he intends prosecuting only a handful of them. Convincing victims that he has gone after those most responsible for the post-election violence will be tricky; convincing politicians that he has been even-handed, even more so. In theory, navigating the complexities of Kenya's political arena should not be the job of an independent international prosecutor. The reality in practice seems quite different.


Ocampo is traveling to Kenya in May to commence investigations. This will include visits to crime scenes as well as speaking to victims and witnesses. Kenya has a legal duty under the Rome Statute (and its own domestic implementation law) to cooperate with the ICC. In addition to providing investigative and logistical support to Ocampo and his team, Kenya's parliament should operationalise its new witness protection legislation by strengthening the capacity of its Witness Protection Unit. It should also publically guarantee the Unit's independence, and support efforts to build national confidence in the integrity of witness protection. If it does this, the government would take an important step towards ending the entrenched culture of impunity that has plagued the country for years. Kenya's people, and the rest of the world, will be watching in anticipation to see if it will.


Written by: Jemima Njeri Kariri and Anton du Plessis - International Crime in Africa Programme, ISS Pretoria

 

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