Wednesday, September 2, 2009

Kenyan TJRC Will Not Meet ICC Complementarity Test: Prosecutions Required

The Kenyan government - at least since the resolution by cabinet to ditch the Special Tribunal - has been holding out the TJRC as a panacea to demands for justice (in particular relating to post election crimes). Some attempted a bizarre spin that the TJRC would 'try' these suspects. The TJRC is not a criminal court, and cannot perform this function.

This said, the government's position raises a crucial question within the context of the ICC, which is still favoured by many (for a range of reasons) to deal with post electoral crimes. The question is whether, if no other mechanism - one before which at least some of the perpetrators can be tried - is NOT established, the TJRC can satisfy the complementarity requirement.

In terms of complementarity, the ICC would only come in to indict and prosecute suspects if Kenyan authorities are unable, or unwilling to bring perpetrators to justice. In her well argued piece, Lydiah Kemunto Bosire argues that deploying the TJRC would not pass muster, and that a prosecutorial mechanism is required. Read Lydia's piece here

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