Re-Thinking International Criminal Justice in Africa

Impact of ICC Confirmation of Charges Decisions on Kenyan Life

2012-01-22T18:11:00.008+02:00

As we await the decisions of the ICC tomorrow (23 January 2012) on whether any or all of the six Kenyans facing ICC charges have a case to answer and will thus be committed to trial, two interesting reports - one by the International Crisis Group (ICJ) and the other by the Brookings Institution in the USA - consider the impact of the decisions on politics and other aspects of life in Kenya. Access the ICG report here and the Brookings one here.

Scenarios Relating to ICC Confirmation of Charges in Kenya

2012-01-10T14:44:00.004+02:00

Watch interview given to Capital FM Radio here and follow the story here

Al Bashir arrest warrant judgement by Kenyan High Court bad in law

2011-12-18T22:30:00.002+02:00

The brief post below appeared as an op ed in the Kenyan daily, Standard on 18th December 2011. See here

The judgement by Justice Ombija issuing an order of arrest against President Al Bashir of Sudan has been subject of contestation for several weeks now. I only offer a brief scholarly critique of the judgement in light of my own reading of the law, which is that the judge erred in law: the judge was wrong to issue the order. To summarise Judge Ombija’s decision, he says that Kenya has an obligation to arrest Al Bashir because we ratified the Rome Statute, passed a law domesticating it and have in any case a Constitution that applies every treaty ratified by Kenya as part of our law.

But, can the applicants, ICJ-Kenya actually apply for an arrest warrant as they did? I have difficulty identifying what basis they were allowed to address the court on substance. Under the International Crimes Act that domesticates the Rome Statute, only the Minister can approach the High Court for an arrest warrant. Under our law, there are only two possibilities for a private citizen to come to court on this matter: for judicial review asking the court to issue orders compelling the Minister to approach the court for a warrant, or rely on the generous provisions on standing in the constitution by alleging that the constitution, in particular the bill of rights has been violated. Neither of this was done by the ICJ. In short, the judge improperly allowed a private citizen to act as the Minister.

According to the judgement, the crucial link between Kenya’s obligations to the ICC and the duty Al Bashir to arrest is universal jurisdiction. According to the judge’s reading of this principle, any state can arrest, prosecute or extradite anyone who commits an international crime anywhere. The problem with this view is twofold. First, with utmost respect to the judge, a discussion of universal jurisdiction on which he bases his decision should never have been conducted because it is irrelevant: the Rome Statute does not include universal jurisdiction. In my view, the judgement can fall on this score alone.

Secondly, although the judge discusses universal jurisdiction at length and he is broadly right on the principle, he does not consider or discuss the fact that current case law — all of it developed by leading Western courts — is that a sitting head of state is immune from arrest or prosecution by national courts abroad. I argue — again with utmost respect to the judge — that he only arrives at the conclusion that Kenya has an obligation to arrest by considering arguments that should not be relevant to the discussion, but more crucially, by not considering the most crucial issue. This central issue, on the basis of which the warrant issue should be resolved — and on which his decision stands or falls — is regrettably not dealt with by the judge.

The issue is: even when there is an ICC arrest warrant, can a sitting head of state be arrested abroad and handed over the ICC? The judge simply says in a couple of lines that no one benefits from immunity in respect of the ICC. Although he doesn’t cite the provision, this position is represented in article 27(2) of the Rome Statute. It is true that the ICC can indict anyone. However, it is not the correct approach to base Kenya’s obligation to arrest on article 27. If the Rome Statute forms part of our law, one must go on to see what else the Rome Statute says. The judge correctly does that, but he stops at article 91 and 92 which regulate procedure for arrest. By doing that, the judge misses the fact that a sitting head of state is subject to a different procedure of arrest, under article 98(1).

My reading of article 98(1) — which is not uncontroversial — is that because under international law of diplomatic relations and state immunity a sitting head of state ordinarily enjoys immunity from the actions of foreign organs of state — including the Judiciary — a Kenyan court can only properly order arrest of Al Bashir if one of three things exist: Sudan waives his immunity (through national law) or he is removed from office or Kenya removes its recognition of him as the legitimate Sudanese President. The cases of Milosevic of the former Yugoslavia, Charles Taylor of Liberia, and former Ivorian strongman Laurent Gbagbo who now sits in a cell in The Hague months after leaving office all support this view. Until there is a new rule of international law — introduced perhaps by an amendment of the Rome Statute, saying a sitting head of state indicted by the ICC can be picked up when visiting a foreign nation, we are stuck with what we have. It is for this reason that I fault the ICC judges’ ruling made several days ago on this issue (a decision involving Malawi’s refusal to arrest Al Bashir), which I will address, in a future post. However, I have serious doubts that a rule allowing arrest of a sitting head of state will emerge soon. The immunity enjoyed by heads of state and foreign ministers when traveling abroad to conduct diplomacy for their nations — is one of a handful of rules that form the cornerstone of the international system. I cannot visualise a different world — other than an anarchic one — where the legal equality of states did not exist.

My interpretation of article 98 of the Rome Statute does not mean a President cannot be tried: we just have to wait until he/she leaves office. Gbagbo is now in The Hague, seven months after his ouster. Too bad if a country is not a democracy or if — as is the case in Sudan – other states are unwilling, because of their national interests, to remove recognition of the sitting head of state that would enable them arrest him without breaching international law. Right now, resolution of the Bashir issue does not lie in the law: it is political.

Reflections on Fatou Bensouda's Election as ICC Prosecutor: Is it Good for Africa?

2011-12-17T22:14:00.001+02:00

My brief remarks below about Fatou Benouda's election and the next Prosecutor of the International Criminal Court appeared in the , a kenyan daily on 15th December 2011. See here

Fatou Bensouda’s election as the second ICC Prosecutor has received mixed reactions, although the majority of voices have been positive. I add my voice by arguing — as someone who has come to know Ms Bensouda personally, and as a follower and participant in developments around the ICC over the last few years — that her election is good for ICC, and for Africa. However, I suggest that it is precisely the fact her election is good for Africa that could be her undoing. It is no exaggeration to say she is assuming the position not only because of her abilities, but also because the African Union (AU) wanted, and fought hard to ensure an African succeeds Ocampo.

Her election is good for the ICC because it ‘buys’ continued support for the ICC from a large part of the African bloc in the ICC, and the AU, which has shown itself — for good or bad — a major player in the sphere of international justice. Bensouda’s election is also good for ICC simply because she is not Ocampo. While she has been at the heart of operations in the Office of the Prosecutor and in many cases handled the technical aspects of constructing cases (with Ocampo mostly as the PR person), she lacks Ocampo’s much reviled abrasiveness that turned many off the ICC. After the fallout between AU and the ICC (read Ocampo) over President Omar Al Bashir, one heard arguments in African capitals — mostly in boardrooms, but also publicly — that the ICC had ‘marginalised Africa’ while focusing entirely on Africa.

At the time when the ICC’s support was plummeting in Africa (in political circles at least), she became somewhat a ‘poster girl’ for the court. And I don’t mean this pejoratively. Accused by AU of being a ‘Western court’ that prosecuted Africans while at staff level relegating Africans ‘to deputy everything’ as some African leaders would gleefully state, the court had gone on a charm offensive by deploying its senior African staff. I was honoured to share platforms with Ms Bensouda in several African cities — Addis, Kampala, Pretoria, Maputo and Midrand (the seat of the Pan African Parliament) while she travelled the continent to market the court and put out fires. She came across to me as someone who is not only smart, but also one with a genuine belief in the ICC project. More importantly, unlike Ocampo, when some of us took the liberty to criticise her office and ICC constructively for the manner in which certain things were done, she was open to acknowledging these failings, but always referenced the need to do justice for victims.

For Ocampo, you were either unquestioningly with the ICC, or you were ‘with the criminals and killers’. She will win the ICC many friends just by being nice and accommodating. The AU’s triumphant fight to see her at the top must be seen in one of two ways. First, the AU hopes — however strange this may sound — to ‘establish balance’ in the court by gaining a foothold at the highest echelons of decision-making. If the idea is to somehow influence things through her however, there will be disappointment. Save for a limited space where the prosecutor enjoys total discretion (who to charge and largely, the charges), pretty much everything else is subject to judicial control of Pre-Trial Chamber.

Second, but linked to this is that there is a desire — and this is not limited to Africa — that the new prosecutor must expand the focus of ICC investigations beyond Africa. For long-term legitimacy of the ICC, many would agree that there must be a genuine attempt to truly internationalise the ICC. This could be Bensouda’s greatest challenge, one that could prematurely end celebrations. Because of the limits in ICC jurisdiction, some situations (non-state parties like Sudan) can only come to it through the UN Security Council. There is no doubt the AU will watch her every move, and I will not be surprised if some demands are made on her in the Al Bashir matter. She may have no choice but to rebuff these overtures. Her burden clearly is do her job in a way that does not open her to criticism globally for being ‘soft’ on Africa, merely because she is African. My suspicion is that it is precisely for this reason that she could be firmer than Ocampo, although in a more diplomatic and accommodating way. It is a commendable personal victory, but I honestly don’t envy her. She must rethink strategy and re-position the Office of the Prosecutor while remaining on course in existing situations and cases.

The reality is that even though there are proclamations that support for ICC is growing — largely because of new situations opening — in political circles resolve waivers and most doors have closed or near-closed in older situations like Uganda, DR Congo, CAR and Sudan. Even among communities of victims, experience shows that support for ICC reduces sharply as the process advances. This is partly because it becomes evident the ICC — however important — does not deliver quick justice and the promise of reparations from the court remains illusory for the vast majority of victims. Some hard thinking for Bensouda is necessary, but there are limits to what she can reasonably be expected to achieve because some of the problems of the ICC are structural. Only time will tell. She has my best wishes!

ICC Prosecutor Ocampo Admits Double Standards at ICC

2011-11-08T09:41:00.006+02:00

One of the most problematic aspects of the ICC is the role assigned to the security council (UNSC) to refer situations to the Court (art 13) and to suspend proceedings before the Court for a year (art 16).

Whatever its justification, it is problematic because it preserves the politicized role of the UNSC in a judicial body and projects the selectivity of the UNSC when acting to create ad hoc criminal tribunals in the past.

From an African perspective, the African Union has cited the role of the UNSC in its accusations against what it regards as selectivity on the ICC's part. One has to note that this accusation against the ICC may appear unfair because in situations where the court cannot act because a matter cannot get to the court either through a state referral or proprio motu initiative by the prosecutor only the UNSC can trigger jurisdiction. The problem however, is not that the UNSC can, and has in fact referred some situations to the court - Darfur and Libya - but that it has acted selectively. Commentators and the AU point for instance to possible war crimes committed during Operation Cast Lead in Gaza within the same time frame. Some go as far as Iraq and Afghanistan.

Until now, the ICC has been mum about the potential political role of the UNSC in the court. The ICC's supporters for their part have been quick to dismiss this as a minor issue, noting that once a matter gets to the court, only legal criteria become relevant. While this is true, it has to be acknow3ledged that the manner in which the UNSC has evolved not only in referrals but also in refusing to defer (esp Darfur) has had an impact on the international legitimacy of the ICC. In any case, the statutorily protected prosecutorial role in charging suspects is another site for potential politicisation but has received but limited attention until now.

In a surprising turn of events, the outgoing Prosecutor Moreno-Ocampo (perhaps emboldened by his impending departure and can now afford to be frank) has admitted that there is a double standard at the ICC.

Read his recent comments reported by Opinio Juris here.

UK Denies Responsibility for Torture of Mau Mau

2011-04-09T17:45:00.004+02:00

The hearing of a case filed by four Mau Mau veterans who waited 50 years for their day in court have commenced in London. The claim by the veterans is that the UK governmnet is responsible for torture they suffered at the hands of the colonial administration. The UK government opened by denying responsiblity, claiming that the UK government was separate from the colonial administration in Kenya which functioned as an autonomous entity. For this reason, the UK government cannot bear responsility for atrocities suffered. Without getting into the merits, the UK argument does not square with the ide of 'Empire': that all foreign possesions were part of the British Empire with London exercising varying degrees of control on the overseas territories. The case may turn on whether sufficient link is established between the two in a manner that infers responsibility for the UK government.

Although it is not clear whether this will feature in arguments, this case raises an interesting question relating to the law of state responsibility. Can governments that take over after the end of colonial rule be hel legally, and morally responsibile for the departed colonial administration?

Two theories are applicable. First, that of universal succession, in terms of which post colonial government inherits all obligations incurred by the departing power. If this were to apply to the instant case, then Kenya is liable to pay compensation to the Mau Mau veterans. The second theory is the 'clean slate' (tabula rasa) approach. This approach holds that the new governmnt starts afresh, and cannot be held liable for the conduct of the departing colonial government. This is most gavoured by newly independent states for obvious reasons. This approach was favoured by Nile basin states that rejected the Nile Water Agreement of 1929, granting Egypt the lion's share of the Nile waters. The Nile Agreement has been replaced with a multilateral one, Nile Treaty of 2010.

On the Mau Mau case, see here

Kenya's Deferral Request Should Worry the ICC

2011-03-01T22:50:00.003+02:00

For some thoughts on this issue, see this short piece published by the Royal African Society. In this article, I argue that the kenyan and Sudan are linked in a number of ways, and that while basic legal criteria are not met to secure deferral, links with Sudanese situation complicates decision-making for the UNSC. I conclude that whatever happens, the ICC is unlikely to re-emerge unscathed.

No Need For a Referendum to Withdraw from Rome Statute, Treaties and Conventions

2010-12-21T10:03:00.005+02:00

Like the contentious Al Bashir visit, the naming of 6 suspects by ICC Prosecutor Ocampo has evoked very disturbing comments about the new constitution.

For Kenyans to reap fully from the new constitution, we must not interpret the constitution in a manner that undermines rights and offends against the naked letter of the Constitution. Judge Musinga’s recent ruling on boundaries is a good example (jurisdicction).

But we must also not interpret it too restrictively, and without much reflection because this would make it difficult for government to perform its functions, including engaging Kenya in international affairs. The suggestion by some MPs and lawyers that we need a referendum to withdraw from an international treaty – in this case the Rome Statute – is a perfect example.

I suspect that these views are largely due to limited understanding of relevant international law and comparative experience.

I have commented before (during the Al Bashir saga) on the place of international law under Kenyan law, in view of our new constitution. I feel constrained to revisit some of my arguments in view of the current furore.

The relevant parts of the Constitution, articles 2(5) and 2(6) respectively read as follows:

The general rules of international law shall form part of the law of Kenya

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.

These two provisions simply regulate the relationship between domestic/national law and international law. They have nothing to do with the supremacy of the constitution. The two provisions were placed in the wrong section of the constitution by COE, but it is not fatal. On the naked letter of those provisions, as well as comparative experience, they need not be interpreted differently simply because they are in the section ‘supremacy of the constitution’.

Contrary to views expressed by by Hon Mutula, Karua, Mungatana and Muite and echoed elsewhere, a plain reading of 2(5) and 2(6) shows that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the constitution.

This is not an academic distinction. This reasoning is in line with major legal traditions in the world, including our own, unless we want to invent a new tradition which would make it difficult for us to engage internationally. There are other serious implications, but the main one is that Kenya can only join or withdraw from any treaty – even minor bilateral treaties – by approval of a referendum! Even as a matter of pragmatism and policy, it is the wrong interpretation, in view of the number of agreements Kenya signs with foreign nations, and the expense of running a single referendum! Our engagement internationally would suffer significant, unwarranted hiccups......

The only difference is between custom and treaties is how the two categories of rules of international law become part of Kenyan law.

General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states eg the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.

These customary rules, are superior rules and automatically form part of Kenyan law. No legislation is needed to make customary rules part of Kenyan law. Because some customary rules are contained in treaties, once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. All other rules of international law ie non-customary rules contained in treaties and conventions (art 2.6 above) only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.

The words ‘under this constitution’ at the end of art 2(6) do NOT mean that treaties like the Rome Statute form part of the Constitution. And this is where the MPs named above get it completely wrong. ‘Under this constitution’ means ‘as provided by the constitution’. In other words, the constitution provides how treaties and conventions form part of Kenyan law. Note the difference with article 2(5) which omits ‘under this constitution’, because custom forms part of our law or is incorporated automatically in Kenyan law when a new international custom emerges.

Our constitution provides how treaties form part of Kenyan law by vesting full legislative powers in Parliament. In terms of our constitution, the executive negotiates, ratifies and withdraws from treaties. Parliament translates treaties into Kenyan law by passing legislation. It also has full powers to repeal or amend any law it makes, including the International Crimes Act.

We can question Parliament’s motives or that of the movers of the motion. We can oppose withdrawal from the ICC for other reasons, including the imperatives for justice. And I understand those opposed to repealing the International Crimes Act or withdrawing from the ICC to be saying that it is not advisable, and that it is in fact duplicitous to make this attempt. But it is very strange indeed to suggest that it is unconstitutional for parliament to do legislative work! Under the old and new constitution, and the constitution of any country, it is the work of Parliament to make and unmake laws! In fact, we would be acting unconstitutionally if we prevented Parliament engaging in lawmaking through various mechanisms, including motions.

Constitutionally, parliament’s powers are limited to legislating, which includes translating treaties into Kenyan law. But they cannot negotiate or withdraw from a treaty. They can only pass a motion asking the executive to do so. This is not unconstitutional. It is up to the executive to take the process forward, or refuse to do so. The new constitution demarcates functions but proposes cooperative engagement between the three arms of government and levels of government: national and county. It cannot be unconstitutional for one arm or level of government – while keeping to its functions – to remind or request another to perform a constitutional function.

While noting that repealing the International Crimes Act does not amount to withdrawing from the ICC, the Rome Statute is clear that any State Party can withdraw (art 127). As an international lawyer, I don’t know of any treaty (including the UN Charter) that would bar a party from withdrawing. I explore conditions of withdrawal in another post.

In conclusion, I must emphasise that there is no need to amend the Constitution because the Rome Statute – just like other treaties ratified by Kenya – does not form part of the Constitution. The argument that the Rome Statute and other treaties form part of the constitution is unsupported by both comparative experience and a plain reading of art 2(6) or any other provision in the Constitution. As argued, to suggest otherwise produces a result that we do not want to live with: making it near impossible for the executive to speedily, effectively engage Kenya internationally through negotiated agreements.

Beyond legal arguments, and while noting that repealing the International Crimes Act neither withdraws Kenya from the ICC nor stops current ICC process, what can be asked of parliament is: what alternatives are we offering for real justice for victims?

I explore the idea of options in another post.

Trial of Somali Pirates Opens in Hamburg

2010-11-25T13:38:00.003+02:00

The trial of 10 Somali pirates has opened in the German city of Hamburg. This is the first such trial in 40 years. Read more here.

New Book on Militias, Rebels and Islamist Militants

2010-11-21T19:18:00.005+02:00

A new book, Militias, Rebels and Islamist Militants: Human Insecurity and State Crisis edited by Wafula Okumu and Augustine Ikelegbe has been published by the Institute for Security Studies (Pretoria, October 2010).

This seminal work explores how armed non-state groups have emerged as key players in African politics and armed conflicts since the 1990s. The book is a critical,multidisciplinary and comprehensive study of the threats that militias, rebels and Islamist militants pose to human security and the state in Africa. Through case studies utilising multidisciplinary approaches and concepts, analytical frameworks and perspectives cutting across the social sciences and humanities, the book conceptualises armed non-state groups in Africa through their links to the state.

My contribution to the book, (chapter 4)titled, 'Armed non-state entities in international law: status and challenges of accountability' (pages 89-119): attempts to distinguish the various categories of actors – national liberation movements, rebels and militia as well as other relevant groups – in legal context; reviews international law and the branches that are relevant to these groups – in particular rebel movements and militia groups;outlines the legislative responses by the African Union and United Nations to rebels and militia activities win the African context; and provides an overview of the breaches of international law committed by these groups and how international and national legal regimes have held them accountable, and some of the challenges of holding perpetrators accountable under international law.

The 552 page book is downloadable in full at http://www.issafrica.org/pgcontent.php?UID=30496

My New Book on Victims and the International Criminal Court

2010-11-05T10:13:00.009+02:00

My new book, Rethinking International Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court (2010) has been published by Lap Lambert Academic Publishers in Germany. It is available at major stores in the US and Europe as well as www.amazon.com [see: http://www.amazon.com/s/ref=ntt_athr_dp_sr_1?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Godfrey%20Musila] and www.morebooks.de (follow this link https://www.morebooks.de/store/gb/book/rethinking-international-criminal-law/isbn/978-3-8433-6810-0) (Morebooks offers free shipping worldwide).

More About the Book

Since the International Military Tribunal (IMT) at Nuremberg, the first international tribunal to try individuals for international crimes, the role of victims of international crimes in international criminal proceedings has been limited to that of witnesses. The ad hoc international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) did not change this position. As such, the International Criminal Court (ICC) is the first international criminal tribunal to provide for the rights of victims to participate in their own right in criminal proceedings. Similarly, it is the first such tribunal to provide for their right to reparations.

This study focuses on the right of victims to participation and to reparations under the Rome Statute of the International Criminal Court. It argues that the ICC offers an opportunity for the entrenchment of the concerns of victims in the international criminal process. However, it suggests that this depends on what framework of justice the Court adopts. The study further argues that previous international criminal tribunals – the IMT at Nuremberg and the ad hoc International Criminal Tribunals (ICTY, ICTR and SCSL) – operated on retributive and utilitarian theories of criminal justice that are exclusionary of and inimical to specific concerns of victims of international crimes. The largely retributive and utilitarian objects driving these systems limited victims to a peripheral status in the process and failed to address fully the harm occasioned to victims.

This study suggests that the ICC should adopt a restorative justice paradigm in order to give full effect to the rights of victims while protecting the rights of defendants and meeting the law enforcement functions of the Court. The study reviews the relevant texts – the Rome Statute, its Rules of Evidence and Procedure and other instruments – and demonstrates that the ICC framework provides a basis for such a restorative justice paradigm. In order to suggest a trajectory for the operationalisation of the ICC victims’ rights regime underpinned by principles of restorative justice, the study attempts a systematic review of the rights of victims in criminal law processes in select domestic criminal justice systems (including the USA, France, United Kingdom), international human rights tribunals and other international courts. At the same time, the study reviews the implementation of reparations in various contexts and makes suggestions as to how the ICC and the Victim Trust Fund of the ICC should proceed in this regard within the relevant legal and institutional framework.

In relation to the right to participate, the study concludes that Article 68(3) of the Rome Statute – the general provision on the subject – strikes the right balance between the right of victims to participate, defence rights to an expeditious trial and the law enforcement function of the Prosecutor. However, it argues that the scope of victim participation at various stages of the proceedings will depend on, among others, the paradigm of justice adopted by the Court and, in view of the Prosecutor’s seemingly knee-jerk opposition to victim participation, the attitude adopted by the Court itself to this new right of victims. The study reviews relevant texts and concluded that the Rome Statute’s victims’ rights regime presupposes a restorative model of justice – understood as values and principles rather than ‘practices’ and ‘methods’ as applied in some national criminal justice systems. Restorative justice contemplates a central role for victims of crime in relevant proceedings. Henceforth, the rights of defendants must not only be weighed against the concerns of the Prosecutor but also the right of victims to participate.
The study concludes further that the tests established for victims’ participation – appropriateness, the requirement for their personal interests to be affected and the rights of defendants – present serious challenges in view of the fact that ICC crimes for the most part will involve mass atrocity. The number of victims who may eventually participate in particular proceedings is thus very small. The study notes that while the provision for legal representation of victims alleviates some of the difficulties associated with participation by a varied mix of victims in complex proceedings, it may be considered as diminishing the impact of direct participation. While the scope and modes of victim participation will vary at various phases of proceedings, current jurisprudence at the ICC shows that the Court seems to favor a broad presumption of victim participation. Since full realization by victims of the right to participate will depend on the role that the Court will play, it is crucial that the right paradigm of justice is adopted.

With respect to the right to reparations, the study notes that this is perhaps the greatest innovation in the Rome Statute. The study finds that the Rome Statute establishes two ‘focal points’ for purposes of reparations – the Court and the Victim Trust Fund (VTF) – in close relationship with each other. Drawing from the experience of national criminal justice systems, the study acknowledges the practical difficulties involved in vesting a criminal court with a reparation function argues that this will pose particular challenges to the Court. These include the need to protect the right of a defendant to a speedy trial, the presumption of innocence and to conduct efficient proceedings. Having reviewed the texts and relevant jurisprudence, the study concludes that various mechanisms, including various permissive rules and the creation of the Victim Trust Fund make it possible to address some of the difficulties associated with the right to reparations in the ICC.

The study further notes that while a reading of the relevant provisions establish the possibility of the Court and Victim Trust Fund instituting independent reparations schemes, it is imperative that the two collaborate in order to give full effect to that function. In any case, while Regulation 56 of the Court’s Regulations provides for the possibility of considering reparations issues during the main trial, the fact that a reparation order against an accused is dependent on finding of guilt of the accused, it necessarily means that a definitive finding on reparation has to come after that.

Further, the study concludes that in context of mass atrocities and the possibility that numerous victims may prove the requisite links to a case to obtain reparations, holding joint proceedings would complicate and burden the trial. However, the study endorses the initial view of the Court that evidence concerning reparations could, at least in part – where appropriate, and in the interest of efficiency and victims – be considered during the trial.

The study further concludes that the Victim Trust Fund, which presents greater flexibility than the Court in terms of standards of proof, the requirement for criminal liability and various other mechanisms should be allowed a more prominent role in the processing of reparations. A survey of various mass reparation schemes – Holocaust reparations, South African Truth and Reconciliation Commission, the Rwandan Gacaca model and the United Nations Compensation Commission (UNCC), as well as the United States’ Alien Tort Claims Act (ATCA), a particular mass tort litigation mechanism – offer some useful lessons on a range of challenging reparation related questions.

The study concludes that while the Rome Statute offers an important opportunity for victims in terms of reparations, various challenges including shortage of funds and the large number of victims requires that situation countries – those states under investigation by the ICC and from which victims are drawn – cannot abandon their primary responsibility of providing appropriate remedies for victims. The ICC is not, and cannot be a panacea for the concerns of victims of international crimes.

New Blog on International Criminal Law

2010-11-02T09:10:00.004+02:00

My good friend Charles C Jalloh, a Professor at University of Pittsburg School of Law and an avid scholar on issues related to Africa and international criminal justice, has recently launched a blog: International Criminal Law in Ferment. It is an excellent read .....Follow here

Al Bashir's Presence in Kenya Did Not Violate the New Constitution

2010-09-03T09:59:00.005+02:00

This article appeared as an op ed in The Star newspaper (Nairobi) on 4th September 2010.

The saga relating to the presence of President Al Bashir in Kenya continues. Some have argued that Kenya violated its obligations relating to the International Criminal Court (ICC) by inviting an individual against whom an ICC arrest warrant exists.

Lately, it has also been argued that the government breached the new constitution by hosting Al Bashir. One writer, Howard Varney notes that Kenya ‘despoiled the new constitution’ by this act.

In a previous piece, I have addressed the first argument, noting that the hosting of Al Bashir did not violate the Rome Statute of the ICC. Today, I consider why this act in no way violates the new constitution. I will refer to contrary arguments made by others on this issue. However, I will not address any political underpinnings of the invitation or its alleged links to the ICC investigation in Kenya. The argument is that whatever its motives, the act stands on sound legal legs.

A number of Kenyan lawyers and Howard Varney have suggested that since Kenya ratified the Rome Statute, hosting Al Bashir violates article 2 of the New Constitution. The relevant parts, articles 2(5) and 2(6) respectively read as follows:

The general rules of international law shall form part of the law of Kenya.

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.

This issue cannot be understood by resorting to general arguments such as those above. There is a specific issue that these commentators deliberately ignore or shy away from discussing: the immunity of a serving head of state from the jurisdiction of foreign nations, and by extension the ICC. General arguments about article 2 do not shed any light on the key issue.

Before addressing what international law and the Rome Statute in particular says about immunity of heads of state, it is useful to consider which part of international law actually forms part of Kenyan law as per article 2 above.

General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states. Examples include the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.
These customary rules automatically form part of Kenyan law, no matter their source. Once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. Customary rules in any case apply in the absence of any act of ratification.

All other rules of international law – that are not customary in character – only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
Informed by our own dualist tradition (see relevant provisions of new constitution regarding law making authority) and comparative experience, there is no other way of understanding article 2(6) of the New Constitution. It cannot therefore be suggested - as some have attempted to do - that the Rome Statute as a whole forms part of Kenyan law because we ratified it. It forms part of our law because Parliament passed the International Crimes Act in order to domesticate it.

Back to the issue that previous commentators have avoided, but which perhaps is the only relevant issue in the Al Bashir saga: immunity of heads of states. Article 27 of the Rome Statute says that the official position of an individual does not prevent the ICC from exercising jurisdiction. This means anyone can be investigated, indicted and an arrest warrant issued. There international lawyers who take a stricter view, suggesting that serving heads of states and foreign ministers are excluded and that any act the mere act of attempting to charge would be illegal. This links to rules in the Rome Statute that appear to preserve customary law immunities of senior state officials.

Article 98 (1), which I have commented on before (see previous blog posting), is easily the ‘elephant in the Rome Statute’ that many prefer to treat as a black hole. Fervently pro-ICC people hate it, and prefer to ignore it in their analysis. It is fair to suggest that this approach only renders their understanding of the Statute partial, subjective or downright dishonest.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

I want to state emphatically that 98(1) codifies one of the oldest rules of customary international law, and which is rightly one of the pillars of the international legal order as we know it. It affirms the equality of states, and oils inter-state relations by protecting presidents and senior envoys from small and weak nations from willy nilly arrests abroad.

The ICC has changed some things, but this is one rule it cannot change, at least not in its entirity. And that is why it is preserved in article 98(1) in a treaty that declares war on impunity. Both article 27 and 98(1) form part of Kenyan law automatically but also through the International Crimes Act passed by Parliament in 2008. So when people say Kenya violated its international law obligations, and its New Constitution, they must tell us which obligation.

The truth is: that Kenya finds itself, like other nations, in a position in which it can choose to arrest a head of state in compliance with a weaker and definitely younger rule of customary international law (art 27 was introduced by the Rwanda and Yugoslavia tribunals in 1994) or host him at will, in compliance with a rule older than the modern state founded in 1648.

As I have argued before, Al Bashir can only be arrested once states remove the recognition he enjoys as the President of Sudan or if his immunity is removed: after he leaves office either by losing an election or removal by the Sudanese Parliament. The supposedly all powerful UN Security Council cannot legally do this.

(Re)Writing History After Rwanda's Genocide: A Response to Peter Erlinder

2010-09-03T09:36:00.003+02:00

Recent reports that President Kagame's Rwandan Patriotic Front may have committed serious crimes in the DRC in the 90s has raised the temperatures again, with Rwandan threatening to withdraw its troops from Darfur, Sudan if the UN publishes the report, which the Rwandan government has criticised heavily.

On a related issue, my good friend, Charles Jalloh, a JURIST Guest Columnist and Professor at the University of Pittsburgh School of Law (Pennslyvannia USA) has written as excellent piece responding to Peter Erlinder's article Rwanda: Flawed Elections and the Politics of 'Genocide Denial'. He argues that certain of Erlinder's criticisms of the ICTR are political or unfounded...

You can read his article here...

States Parties to the ICC Have No Obligation to Arrest Al Bashir

2010-09-03T09:29:00.003+02:00

The ongoing saga over the presence of President Al Bashir at the promulgation of Kenya's new constitution raises interesting questions which I addressed four weeks ago in op eds in the Standard and Star Newspapers (Nairobi) following Al Bashir's first visit to a state party of the ICC: Chad.

The same arguments apply to the recent visit to Kenya:

At its summit in Kampala, the AU has repeated its call last made in July 2009 at its Summit in Sirte Libya requesting African countries not to cooperate with the ICC to arrest President Al Bashir. It comes in the wake two significant developments.

The first is the issuance of a second arrest warrant against Al Bashir by the ICC for charges of genocide after the previous arrest warrant in 2009 for alleged war crimes and crimes against humanity. The second development is the first ever visit since the arrest warrants by Al Bashir to a state party to the ICC: Chad.

The African Union (AU) has been heavily criticized by many for its stand on Al Bashir. The argument has been that African countries that are party to the Rome Statute, including Kenya have an obligation to arrest and surrender Al Bashir.
There are legal and political reasons why it would be folly to arrest Al Bashir. It will focus on the legal ones.

Those who have urged Al Bashir arrest – largely non-governmental organizations – have asserted that states parties have an obligation to arrest and surrender. They have insisted that article 27 of the Rome Statutes does not allow immunity, including that of head of state.

Yet the legal position is less straightforward than suggested.
I argue that there is no automatic obligation to arrest and surrender – and no obligation whatsoever – for these states to arrest Al Bashir, a serving head of State of a country that does not accept the jurisdiction of the ICC.
Although it is true that article 86 of the Rome Statute requires states parties to cooperate fully with the ICC and that article 27 removes immunity from the jurisdiction of the Court, that is only half of the story.

Despite the general obligation in article 86, there is no automatic obligation to arrest and surrender because article 89 provides that the Court must make a request for cooperation to a state containing specific information outlined in article 91.
However, – and this is where trouble lies for proponents of Al Bashir’s arrest – the fact that the ICC has made a request for arrest does not solve the legal problem.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

As confirmed by the International Court of Justice in the Arrest Warrant Case, foreign ministers and by extension heads of state cannot be subjected to judicial authority of another country, irrespective of what they are alleged to have done.

Article 98(1) was intended to preserve obligations of states that existed under customary law even before the ICC was created. These obligations that allows heads of states and their representatives to travel freely ensure smooth relations between states.

While states continue to recognize Al Bashir as President of Sudan, who is designated by Sudanese people to transact for them abroad, they cannot touch him. Otherwise, they will be in breach of article 98.

In fact, while knowing that States have these obligations, the Court will itself be violating the statute if it requests them to arrest. What is surprising that the ICC judges have missed two opportunities to clarify this issue.

Some people argue that recognizing immunity for sitting heads of states defeats the objects of the ICC. I beg to differ. We must distinguish immunity from jurisdiction and immunity from execution.

The operation of article 27 allows the ICC to indict even a head of state. However, article 98(1) prevents the execution of an arrest warrant in respect of a sitting head of state.

Article 98(1) then provides how we should proceed in this case: request for waiver of immunity. Only Sudanese people can waive the immunity of their President, with support for states: state unequivocally that they do not recognize Al Bashir’s Presidency.

As long as they do not do this, they cannot arrest him legally. The legal alternative is to wait until he leaves office. It is in fact duplicitous to want to do business with Al Bashir (on Darfur, the CPA in the South and resources) while insisting that other states should arrest him.

It is exactly this that the AU opposes in different words: turning the ICC into an instrument of foreign policy.

The ICC has changed a lot of things, but it cannot change the foundations of the international legal system: the equality of states and facility in inter-state relations which is premised on ease of travel those who represent states abroad.

TJRC remains relevant in the new constitutional order

2010-08-27T13:52:00.002+02:00

On four arguments why the TJRC remains pertinent in the new constitutional order, read here

Reflections on Kenyan Justice

2010-06-22T07:59:00.002+02:00

Although the event was captured on camera as one of the most atrocious events of the post-electoral violence of 2007-2008, the murder trial of the police officer alleged to have shot two demonstrators in Kisumu has yielded a 'not guilty' verdict. Read the report here.

Indemnity Act, 1972 Cannot Bar the TJRC's Work

2010-02-12T10:16:00.000+02:00

Transitional Justice: PUBLICATION

2009-11-06T15:26:00.003+02:00

The special issues of Oxford's International Journal for Transitional Justice has been published. The special issue, treats the theme:Whose Justice? Global and Local Approaches to Transitional Justice.

My article in the journal 'Options for Transitional Justice in Kenya: autonomy and the challenge of external prescriptions' considers some of the themes in Kenya's evolving transitional justice project.

This issue if the journal, which can be accessed here is a great read.

Kenya: Prosecutor to Invoke Proprio Motu Power As GNU Pledges Cooperation

2009-11-05T15:04:00.014+02:00

Speaking in Nairobi today, the Prosecutor of the ICC Moreno-Ocampo has stated that he will invoke his powers (article 15 Rome Statute) to commence investigations into crimes against humanity allegedly committed during the post electoral violence. The report can be found here. He stated that he has concluded that the evidence reveals crimes against humanity and that the required gravity test can be met. More surprising - perhaps - is the fact that President Kibaki and Prime Minister Odinga, while not agreeing to refer the matter for investigations (the easier route for the Prosecutor), they have pledged to cooperate fully with Ocampo going forward.The statement by President Kibaki and PM Odinga can be found here.

What is important to note is that on the eve of Ocampo's arrival in Nairobi, the two main parties in the coalition - PNU (President's party) and ODM (PM's party) had been engaged in a bitter exchange over the role of the ICC. While there are inaudible voices within each party making the contrary point, the dominant view in the PNU - contained in an OP Ed penned by the PNU-leaning Permanent Secretary in the Foreign Ministry argued that ICC involvement would be 'premature'. See his piece here. There were suggestions that individuals within the PNU had lobbied for the Ocampo to be 'stopped' or 'prevented' from coming to Kenya.

A senior cabinet Minister from the ODM (who is known to be close to the PM) had written an immediate riposte (to the earlier piece), suggesting that those arguing for a delay in the ICC process were 'apologists' for impunity. See his riposte here. Some sort of verbal skirmish had occurred that eventually led to the PS's piece - which could have been considered a GNU position - to be attributed to the government official in his personal capacity. Incidentally, he was in Kenya's delegation to Rome in 1998.

This narration is relevant for at least two reasons. First, the 'reluctance', or 'refusal' by the President and PM to refer the situation to the ICC by themselves as they should have (it would have been the easy way out, as the prosecutor need not seek authorization from a Pre-Trial Chamber to commence formal investigations) - reflects the politics within the GNU. Neither the President nor the PM would like to be seen to be essentially authorizing publicly the prosecution of some of their closest supporters. Invocation by the Prosecutor of his power provides political cover.

Secondly, I believe that it has a bearing on future government behavior - on whether the pledge to cooperate means anything. The peaceful and orderly media conference at which Ocampo spoke belies the deep divisions within the GNU on the ICC issue. There are highly placed individuals who are for and against the ICC process within both parties. The real test is yet to come. It remains to be seen whether the Principals will contain disruptive elements and establish a sustainable cooperation relationship with the Court. Crucially, the much-criticized Attorney General - recently banned from traveling to the US for allegedly 'impeding reforms and aiding impunity' - remains the technical focal point for cooperation. All requests for cooperation from the Court will be addressed to his office. The police - also implicated in the violence - remain key in providing security and other forms of assistance to ICC investigators and staff. Moreover, the Government has to issue travel visas to ICC agents, arrest suspects and provide protection for witnesses and victims.

The government's commitment can only be gauged once this process begins. Clearly, the real test lies ahead. It is noteworthy that some are already predicting that cooperation is unlikely to be forthcoming from government, and that in essence, Ocampo 'has left empty-handed'. See analysis here.

PROCEDURE

In terms of procedure to be followed going forward, the Prosecutor is required to make his case to the judges of a Pre-Trial Chamber (article 15.3 Rome Statute) arguing convincingly that there is reasonable basis to proceed with investigations (and that the Court will not be wasting scarce resources on unfounded investigations). Ocampo has stated that he will do this in December. If they agree with him, the judges (or judge) will then issue authorization to the Prosecutor to open formal investigations into crimes committed in Kenya (article 15.4 Rome Statute). Kenya will then become a 'situation country' in Rome Statute parlance.

The judges could equally reject the Prosecutor's request, if they conclude that there are is no reasonable basis to proceed: ie that evidence brought before the Court does not reveal that crimes against humanity have been committed; or that the crimes are not sufficiently grave as to warrant an ICC investigation (article 15.6 Rome Statute). According to the standard developed by the Office of the Prosecutor, at least four elements are considered when determining gravity: the scale of crimes (no of people killed); impact of crimes; the nature of the crime(s); and the manner of their commission.

In this event (the judges refusing to grant authorization to open formal investigations), the Prosecutor has the option of availing to the judges additional supporting information at a later date (article 15.5 Rome Statute). He is obliged to inform organizations, victims and individuals that supplied information to map the way forward (article 15.6 Rome Statute). This could include these entities availing more information to the Prosecutor that goes to establish the Prosecutor's case that there are reasonable grounds to proceed.

It will get interesting, that is for sure!

Watch the Press Conference (Ocampo, President Kibaki and PM Odinga) below:

Kenya: The Need To Support the TJRC

2009-10-27T08:07:00.004+02:00

See my brief comment in the Standard here and a longer version of the article on Oxford's African Arguments Blog here

Kenya: Misconceptions About the Role of the International Criminal Court I

2009-10-27T07:56:00.002+02:00

There are many misconceptions relating to the work of the ICC in Kenya. In installment I of a short piece in The Standard (27 Oct), I address the question of process and time. Read here.

Kenya: Creating Space for the TJRC, 1970 Indemnity Law To Be Repealed

2009-10-22T15:02:00.009+02:00

In an earlier post, I wrote that the TJRC has many obstacles in its path. In particular, I mentioned that the 1970 Indemnity Act, which in effect grants amnesty for alleged crimes committed by Kenyan forces in the 1960s, is perhaps one of the highest hurdles that has to be breached. Although the TRC has jurisdiction to investigate human rights violations between 1963-2008 and to make recommendations, the Indemnity Act would bar the TJRC from inquiring into crimes between 1963-1967 in certain geographical areas (the whole of North Eastern Province and some Districts in Coast Province).

Enacted in 1970, the Indemnity Act grants individuals amnesty from prosecution for gross human rights violations (potentially crimes against humanity) and related atrocities linked to the suppression of secessionist and other irredentist forces (during the 'Shifta War') in the former Northern Frontier District between 1963-1967. The Act also bars residents of Isiolo, Marsabit, Tana River and Lamu Districts and the entire North Eastern province that could have suffered violations from seeking compensation in any court, tribunals or commissions.

In its relevant parts, the Act provides as follows:

3.(1) No proceeding or claim to compensation or indemnity shall be instituted or made in or entertained by any court, or by any authority or tribunal established by or under any law, for or on account of or in respect of any act, matter or thing done within or in respect of the prescribed area (see plaves listed above) after the 25th December, 1963, and before 1st December, 1967, if it was -

(a) done in good faith; and

(b) done or purported to be done in the execution of duty in the interests of public safety or of the maintenance of public order, or otherwise in the public interest,

by a public officer or by a member of the armed forces, or by a person acting under the authority of a public officer or of a member of the armed forces.

(2) If any proceeding or claim such as is referred to in subsection (1) of this section has been instituted before the commencement of this Act, it shall be discharged, subject in the case of proceedings instituted before the 1st June, 1969, to such order as to costs as the court may think fit to make.

Although the Act does not seem to prevent the TJRC from making an inquiry (it prevents 'the taking of proceedings', which I understand to mean suing for compensation or commencing a criminal case), it would prevent the TJRC from making recommendations that touch on either the criminal or civil liability of alleged perpetrators. The question is, what is the use of finding out who did this or that, and not be able to recommend ways of remedying the wrong? Clearly, the TJRC's hands would be unduly tied before it begins its task.

On a positive note, it appears that the TJRC will have early respite, and an 'easy way out'. Nominated MP Mohamed Abdi Affey has reportedly drafted a Bill seeking to repeal the Indemnity Act. This carries through a motion that was adopted by the Eighth Parliament (proposed by Wajir West MP Aden Wehliye Keinan) to repeal the law. However, time lapsed without a Bill being presented to Parliament.

It is important that this Bill passes into law for at least three main reasons.

First, it would ensure that the TJRC does not have a 'fragmented mandate' in the sense that it is prevented from inquiring into an important period - and for many one of the darkest periods - in Kenyan history.

Secondly, it insulates the TJRC by ensuring that it is not susceptible to attacks on grounds of unconstitutionality, which would have serious repercussions. Importantly, it seals an important hole likely to be exploited by the enemies of justice - either by the TJRC or any body - who would prefer obscurity rather than clarity.

Thirdly, it generates legitimacy for the TJRC from a large constituency in Kenya who have yearned for the truth for years and who have expressed a sense of disillusionment recently because 'they don't feel that the TJRC Commissioners understand their issues sufficiently'. If it is not doing so already, the TJRC should get behind this initiative by the MP. In a sense, the Bill would go a long way in completing the TJR Act and eliminating one major headache for the Commission. The TJRC loses nothing - and I believe gains more by showing that it is serious about the business of doing justice. However, a quieter behind-the-scenes 'lobbying' could be preferred.

As far as I am concerned, the legal framework within which the TJRC is to function - if effectiveness and constitutional integrity of the process is to be achieved - remains incomplete. The TJR Act must be seen as a broad framework that needs work - either through additional legislative enactments such as the proposed Bill or through a set of internal rules and regulations. In brief, there are a few more holes to be plugged. I will address some of these in my next post.

Ocampo Arrival Postponed

2009-10-14T16:25:00.003+02:00

Just after the departure of Dr Kofi Annan, the chief mediator in the Kenyan crisis, the much-anticipated arrival of ICC Prosecutor has been postponed for three weeks (until 3 November). The government has explained the delay by suggesting that Prime Minister will be out of the country (in China) for two weeks. Mr Ocampo has requested the meeting to confer with the President and Prime Minister over potential ICC prosecutions of key suspects linked to the post electoral violence (2007-2008). central to these talks will be the government's failure to make progress in the establishment of a judicial mechanism to try the said crimes.Meanwhile, the debate rages on....

Kenya: ICC Prosecutor Will Have to Act on His Own

2009-10-06T22:36:00.006+02:00

In a meeting with Kofi Annan, Kenyan President and Prime Minister have reportedly stated that they will not formally write the Prosecutor of the International Criminal Court referring the Kenyan situation to the ICC for investigation and possible prosecution of key perpetrators of crimes committed during the post electoral violence. This is certainly to be met with disappointment from victims and civil society organisations that are currently agitating for prosecutions in The Hague. The Kenyan leaders had perfected the art of vagueness, stating publicly that while they are prioritising reconciliation, 'the door remains open for the ICC to come in'. The apparent refusal to refer the situation is significant. While it is not the only trigger of the Court's jurisdiction - a referral from those exercising the powers of Head of State and Government would signify that the government is behind the process, and that it will support the Court in its investigations and prosecutions should these commence. Lacking any machinery to give effect to its orders, the ICC depends on governments for assistance and cooperation to perform its important work.

Some have bee heard stating that since the 30 September 2009 deadline agreed between the government and the ICC Prosecutor for the government to show progress in establishing progress expired, the Prosecutor can somehow come in automatically. this position does not accord with both the Rome Statute and the the 3rd July 2009 agreement. The agreement - in conformity with the Statute - specifically provides that the government will refer the situation should it fail to make progress towards prosecuting suspects.

And while some Ministers have reportedly been heard proclaiming that the 'Prosecutor is free to proceed' two points must be made here. First, Ministers - unless acting with express authority from Head of State and Government - lack powers to refer a situation to the ICC. A referral - just like ratification of treaties - is an expression of state sovereignty, an exercise reserved for the President or Prime Minster, or in the Kenyan case, both acting together. All the three situations currently being investigated by the ICC prosecutor - DRC, Central African Republic and Uganda - have been ceded to the Court by express written invitation from relevant Presidents.

This said, all is not lost for victims. This brings me to the second trigger mechanism built within the Rome Statute. If the Kenyan Principals do not want to act, the ICC Prosecutor will have to invoke his powers to commence investigations. This will require the Prosecutor to act boldly, despite the challenges posed by such a move. It seems reasonable to conclude that the Prosecutor would only invoke this power where the relevant authority do not want to make the referral to the Court. The danger is that such action would incite opposite reaction from the government - refusal to cooperate - with effects that are not difficult to fathom: stalled investigation or prosecution. It is telling that this power is yet to be invoked by the Prosecutor of the ICC. This is not to suggest that he may not choose to do so in the Kenyan case. One suspects that the Prosecutor could be hinting at this possibility when stating that 'Kenya will be an example to the world'. However, the prospect that the Prosecutor would be seen to act in vain (with serious credibility implications for the Court)- should authorities refuse to cooperate - leads me to reasonably conclude that the he is unlikely to take this route. I am sure that recent perception - although for the most part unfounded - that 'the ICC is targeting Africans' is likely to weigh heavily on Ocampo's mind. Invoking his powers will be a last resort, after all is done to convince the government that acting on their own is the best course of action. It is reported that the Prosecutor is to meet the two leaders in the coming days or weeks. Mr Ocampo will be saying things along the lines I have just described: act, or I will. Perhaps in slightly more diplomatic terms.

I will not discuss the third trigger mechanism, which involves the Security Council of the United Nations making as in the case of Darfur Sudan. This is the least likely route, in view of the fact that Kenya has not been on the agenda of that UN body, and is unlikely to be in view of more pressing matter such as Iran, North Korea, and the like.

The matter will continue to evolve...but I guess the three aspects are perhaps the 'immovable constants'. Give that these choices are for the most dictated by considerations in the political terrain that is susceptible to change, we are bound to see a new twist in the plot, including the government taking seriously the idea of prosecuting suspects locally in which case an ICC process could be obviated.

Its wait and see....

Releasing Bemba Conditionally: Did the International Criminal Court Judge Err?

2009-09-15T22:58:00.004+02:00

The recent decision by a judge of the International Court (ICC) to release Jean-Pierre Bemba conditionally until the conclusion of the case against him has raised some controversy. Bemba, former vice President of the DRC is facing charges of war crimes and crimes against humanity allegedly committed in the Central African Republic. He has been in detention for a just over a year awaiting the commencement of his trial. In a short piece published by the Institute for Security Studies, I address some of the issues in that debate, which implicates various interests: law enforcement imperatives; victims' rights; defendants rights; and the judicial function. Read on

Kenya To Abandon Use of Police Prosecutors

2009-09-13T23:36:00.004+02:00

Police prosecutors, who currently prosecute 90% of criminal cases in magistrates' courts are to be phased out by 2011. Currently, there are 300 police prosecutors, and 73 state counsel nationwide. Speaking at a recent function, the Attorney General states that The strategic plan of the State Law Office 2004-2008 proposed the phasing out of police prosecutors by the end of last year but only 52 out of the expected 150 State counsel were employed since there was an inadequate budgetary allocation to support the phasing out program. These reforms are long overdue. Under the current arrangement, the justice system is unlikely to be able to deal with post electoral violence in an expeditious, competent, fair and impartial manner. Although the AG is constitutionally responsible for all prosecutions, police prosecutors are answerable not to the State Law Office but through the police chain of command. They are also appointed within the same chain, and not by the AG.

Kenya: Judges Find Their Legs, Challenge President's 'powers' to Create New Administrative Units

2009-09-05T10:30:00.008+02:00

Since 1992, Kenyan Presidents (Moi and Kibaki) have blatantly violated the law by creating new administrative units (Districts) without powers and without recourse to popular participation.This actions have been in part pure gerrymandering, and in part a placation of targeted electorate to vote in a particular way. Since power is constitutionally centralised in the Presidency and with it the entire kitty of national resources for him (we haven't had a woman yet) to dole out as he wishes, creation of such units was to convince citizens (who are clearly deluded) that 'power is moving closer to them'. Lacking in resources to put up offices for newly minted administrators (who report to the office of the President indirectly), such units have not brought services closer to the people. It had become routine for ethnic lords to lobby the President for new districts. While resisting true devolution, the Presidency doled out districts at his discretion ... 'rewarding' loyal voters, tribes and clans. More recently, it was reported that President Kibaki had created 20 'sub-provinces'...without consulting coalition partners, political parties, Parliament or the people. Yet these actions have far reaching implications for democracy and how resources will be shared in a future devolved government. It is difficult to fault those who argue that the Presidency is single-handedly attempting to predetermine the future outlook of the country.Under the Districts and Provinces Act, 1992, only 46 out of the current 256 Districts are constitutional and legal. Since the creation of any new districts and provinces requires new legislation, the power to create such units rests with Parliament, and not the Executive.

In a historic judgment, a High Court judge has effectively declared null and void all districts created in 'road-side declarations' since 1992, in total, 210 districts. A challenge was brought with respect to declaration (made at a public rally) carving Nyamira North District out of the existing (legal) Nyamira District. Is the Kenyan judiciary finally finding its legs? Such a judgment would have been unheard of in days gone by. Judges have been removed for less (in spite of constitutional guarantees of tenure).

The answer to this question has implications for the accountability debate in Kenya. The Waki Commission took the view that the judiciary could not be trusted with crimes arising out of the post electoral violence. The merits f the case notwithstanding, the question is whether Kenya may still have judges who can speak without fear, and to who the weighty task could be entrusted?

The boundaries issue shows that the notion of impunity in Kenya is much broader than 'criminal impunity'. The idea that public officials can act outside the law without challenge is nothing if not impunity. As one contemplates how to deal with post electoral crimes, and impunity linked to gross human rights violations, broader institutional arrangements need to be put in place to address other forms of impunity and to instill greater regard for the rule of law....this can be done in part through current institutional and constitutional reforms.

Kenyan TJRC Will Not Meet ICC Complementarity Test: Prosecutions Required

2009-09-02T18:42:00.007+02:00

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

Kenya: Special Tribunal Bill Staggers on Day One

2009-09-02T10:38:00.007+02:00

The Special Members Bill proposed by Hon Imanyara has run into early problems. As it gathered support of close to 50 MPs, a new lobby of MPs opposed to the Bill has emerged, prompting the Bill's proponents to suspend calling for early recall of the House which is on 6 weeks recess. It could be argued that this developments may as well have dealt the Bill its death blow, although its prospects of becoming law were less than promising from the start. This is a sad development for victims who continue to wait for justice. While the MPs position goes against grassroots support for accountability, the fact that many represent constituencies with large numbers of IDPs and where most of the violence was concentrated carries some weight in the ever evolving saga. The MPs cite the proposed removal of Presidential immunity by the Bill as their reason for opposing it. It is noteworthy the earlier Bill that failed in Parliament did not have this clause, neither does Kenya's International Crimes Act which domesticates the Rome Statute of the ICC.

Al Bashir Invite to Venezuela Presents Fresh Test for ICC, Its Protagonists

2009-09-02T10:21:00.008+02:00

The invite extended by Venezuelan President Hugo Chavez to President Omar Al-Bashir to participate at the Second Africa- South America Summit in Venezuela (a state party to the ICC) will provide a new test for the ICC and its Prosecutor in the contentious Al Bashir case. It remains to be seen whether the Sudanese president will continue to exercise caution in his choice of travel destinations over fear of possible arrest. The president failed to turn up for a meeting in Kampala in August....

Drastic Recommendation of the Liberian TRC Sparks Heated Debate in Diaspora

2009-09-02T09:49:00.002+02:00

The recommendations made by the Liberian TRC two months are generating heated debate over a range of issues, including which institution - executive or legislature should implement the report. It is noteworthy that one of the main recommendations is to banish from public life key individuals in the political establishment for 30yrs, including President Sirleaf.

Is the TJRC, Special Tribunal Irrelevant Institutions?

2009-08-24T09:39:00.005+02:00

One commentator suggests that there is no need to drag the country through a painful TJRC process: 'We know the truth; just give us justice and reconciliation'. he points to numerous reports by various commissions and civil society organisations (both national and international) that have documented human rights violations over the years. Identifying the State as the main culprit, Dr Muhula seems to underplay and perhaps ignore individual responsibility in some of the alleged wrongs. All his prescriptions on how the country should proceed are targeted at State institutions. One wonders whether state-driven reconciliation can work in cases where identified perpetrators are fellow citizens and neighbours unaffiliated to the state or state objectives. His definition of 'justice' is somewhat ambiguous but seems to translate to a set of measures that exclude individual criminal sanction to which he makes but cursory mention. Do these arguments have merit?

TJRC to begin work in two months

2009-08-22T12:17:00.002+02:00

The TJRC is in the process of putting in place modalities that will enable it commence work in two months. Meanwhile, respected human rights activists appointed to the TJRC have rejected calls to resign, stating that they believe that the TJRC can deliver. The calls are aimed at denying the TJRC - whose chair's integrity has been questioned - any scintilla of legitimacy it may derive from the presence of the human rights activists.

Of False Impunity Debate, and the Necessity of Domestic Prosecutions in Kenya

2009-08-19T05:00:00.003+02:00

Much of the debate in Kenya has been focussed on whether trials should be conducted in Kenya or in The Hague (at the International Criminal Court) and whether the TJRC is an appropriate mechanism to 'try' at least some of the cases linked to the post electoral violence. This is an important debate, but it is a false one. It is a false debate because it avoids or ignores foundational issues, and makes false assumptions. Trials will happen in The Hague not because Waki Commission said so, but because alleged crimes are international crimes: genocide, war crimes or crimes against humanity, and a number of other requirements are met. Those clamouring for mandatory prosecutions in The Hague, or by the Special Tribunal do not seem to have grappled with this fundamental issue, and appear to proceed from Waki's unreasoned recommendation.

Charles Jalloh, argues that much of the debate on options for justice in Kenya, in particular the debate around local trials and The Hague proceeds from the wrong assumptions. He problematises ICC involvement in Kenya and addresses the question as to whether relevant crimes have been committed for the ICC to get involved. He also considers various technical and legal issues and highlights the various thresholds that will inform the involvement by the ICC In Kenya. On the strength of various solid arguments - legal and factual -, he suggests that while the ICC could yet play an important role, domestic prosecutions remain the best option for Kenya.
Read Jalloh's article here.

Charles C. Jalloh is an assistant professor at the University of Pittsburgh School of Law. He previously worked at the Special Court for Sierra Leone and the UN International Criminal Tribunal for Rwanda.

Prime Minister's Party to Support Private Member's Bill on the Tribunal

2009-08-15T17:27:00.002+02:00

ODM to support new attempt to establish tribunal.

Private Member Bill on Special Tribunal To be Introduced

2009-08-13T16:11:00.005+02:00

As attacks against government mount (because of its decision to ditch the special tribunal), a Member of Parliament Gitobu Imanyara is to introduce a Private Member's Bill in Parliament to ensure the Special Tribunal is established.This is an initiative of the Law Society of Kenya, Mr Imanyara and a number of 'like minded' MPs.

Unlike the previous Bill that failed in Parliament, the law proposed by the MP removes the immunity from prosecution enjoyed by the President. This was a contentious issue at that time and in recent Cabinet meetings where the ICC was discussed. The proposed Bill also strips the President of his powers to grant pardon to convicted individuals. The bill also aims to establish investigative and prosecutorial autonomy for the Tribunal by excluding the Attorney-General’s powers under Section 26(3)-(8) of the Constitution. Under that section, the AG is solely responsible for criminal prosecutions and reserves the power to terminate any criminal proceedings anytime before conviction.This power has been used in the past under very contentious circumstances.

In a move that is unprecedented in Kenya's legislative history - but which undoubtedly reveals the desperation of those pushing for it, as well as the fear that the initiative will be killed at one stage or the other of the legislative process -, the Bill seeks to exempt the Act from the provisions of Section 46(2) of the Constitution, in terms of which all bills passed by Parliament have to be assented by the President to become law. For the attempted exclusion of Presidential attempt and other reasons, one commentator has declared the Bill as 'hot air', 'legally repulsive' , 'impracticable' and a 'non-starter'.

The Bill also contains language that ensures that there will be no requirement of consent of President to incur expenditure as per Section 48 of the Constitution. Typically, when a law is proposed by a private member, government usually takes the initiative over if it involves expenditure. The language is meant to ensure that the legislative initiative is not hijacked by government in view of cabinet's resolution not to establish a special tribunal.

It remains to be see how this turns out. What is for sure us that a new battle front has been opened within government factions as well as between cabinet and parliament. While the proponents of the latest initiative suggest that the public can participate (they have launched a website: www.endimpunityinkenya.org), the citizens and victims remain spectators in this evolving saga.

Conditions in Kenya are Hardly Right for Transitional Justice

2009-08-13T14:32:00.003+02:00

For a transitional justice project to succeed, certain conditions must exist. In his article published in the Daily Nation on August 12 2009, Ambani Osogo argues that the Kenyan situation lacks the ingredients....

Kenya Can Learn From Rwanda

2009-08-10T19:50:00.003+02:00

The decision by Cabinet to scrap the Special Tribunal and to deploy ordinary criminal courts alongside the TJRC has drawn sharp criticisms from those who fear that corruption is rife in the criminal justice system and that inefficiencies within the system could be an easy ticket to freedom for key suspects. I have argued as much in a previous posting (30 July 2009). In his piece published in the Rwandan newspaper New Times, on 10th August 2009, Idi Gaparayi argues that ordinary criminal courts, while prone to 'imperfect justice' have their role. He argues that the Rwandan example, where hundreds of thousands suspects had to be prosecuted, national courts have played an invaluable role...

Read on....

Kenya: Domestic Justice for Post-Election Violence Crimes

By Idi Tuzinde Gaparayi

When the Government of Kenya announced on Thursday July 30, its decision to refer post-elections violence cases to national courts, critics decried the measure as upholding impunity. Ordinary justice, they say, is inadequate in handling extraordinary crimes.

What is needed is special justice, either in the form of a special tribunal or, better still, before the International Criminal Court in The Hague.

It is easy to understand these compassionate ‘right-thinking’ advocates. A pre-condition that appears to have paved the way towards genocide in Rwanda was immunity from prosecution for those who had perpetrated violence against the Tutsi minority since, at least, the time of independence in 1962.

As a consequence of this culture of impunity, when orders to eliminate Tutsi were propagated after the death of President Habyarimana, those who joined the genocide against the Tutsi acted without fear that their crimes would result in punishment.

Thus, the failure to prosecute serious crimes is considered as bad if not worse than the crime itself. Impunity breeds violence.

Yet, while the motto “crimes must not go unpunished” is embraced evenly by political opponents in Kenya, the mere commitment to justice offers little guidance into the manner or the timing for implementing this ideal of accountability, which entails not only the protection and vindication of rights, but also the prevention and punishment of wrongs.

Of course, criminal trials can play an important role in the aftermath of violence. They express public denunciation of criminal behaviour.

They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims.

Criminal trials can also contribute to greater public confidence in the State’s ability and willingness to enforce the rule of law.

In the context of Kenya, prosecutions can help to de-legitimize extremist elements, ensure their removal from the national political process and contribute to deterrence.

However, achieving and balancing the various objectives of criminal justice is less straightforward then it might first appear.

There are a host of other constraints that societies emerging from violence and anarchy have to take into account.

For example, in 1994, Rwandan law was not designed to deal with the challenges faced when massive numbers of people – survivors and perpetrators of crimes – have to live together again, side by side, in an extremely poor country.

Some adaptations to the real-world circumstances of Rwanda were needed.

Thus, in assessing policy decisions designed to achieve justice for post-elections violence crimes in Kenya, it is important not to uphold them to unrealistic ideals.

Justice is not achieved when rigid adherence to human rights principles results in political collapse.

It is important to consider that the choices of accountability mechanisms in Kenya are taking place in a context of a power-sharing agreement, and that of chief concern to the parties at the negotiating table in the aftermath of the disputed 27 December 2007 elections, was the imperative to stop the wave of violence and lawlessness raging around the country.

Moreover, it is no secret that the debate over accountability mechanisms in Kenya is taking place within a much polarised political environment, as demonstrated by the failure to pass the Special Tribunal Bill in February this year.

Just as peace is an outcome of an agreement between the Party of National Unity and the Orange Democratic Movement, a political consensus on the nature and scope of criminal justice for the violence is critical for its success.

Accountability in the Kenyan case calls for political and legal pragmatism that is adapted to the context, and respond to the needs, of Kenyans.

Advocates of criminal justice in Kenya have great faith in the power of the law and legal institutions – such as the ICC - to resolve the accountability question.

The ultimate test, however, ought to be whether Kenyans stand to benefit when the “peace and justice” agenda is defined according to local values, norms and prevailing circumstances, and thus put into the hands of domestic actors, international actors merely lending support to the domestic process, or when “peace and justice” is more or less a uniform script falling to a greater degree to the discretionary authority of international agencies and actors such as the United Nations or the International Criminal Court.

If the Rwandan experiment has anything to offer, it is that, in the aftermath of mass violence, domestic processes, however imperfect, offer the best option for rebuilding a nation.

Kenyans have within themselves the resources to deal with post-election violence crimes in a manner that is realistic and informed by the realities of the situation within the country.

Prosecutions through regular courts thus offer one solution to the demands for accountability.

IDI GAPARAYI is an International Criminal Law Expert based in Kigali. He has worked at both the International Criminal Tribunal for Rwanda and for the Former Yugoslavia. He has written extensively on Rwandan post genocide justice.

Justice Minister Insists on Special Tribunal and MPs Bicker

2009-08-09T10:28:00.005+02:00

Justice minister Mutula Kilonzo, has insisted that only a Special Tribunal conforms to international standards. The minister, who appears to be the lone champion of the special court in Cabinet was responding to accusations that he is pursuing a political agenda and that his position is aimed at 'eliminating the main contenders' in the succession battle to pave the way for Vice President Kalonzo Musyoka.

The Minister's comments came at a time when rifts in Cabinet are widening. Cabinet was said to meet to decide how to proceed with the proposal to revamp the mandate of the TJRC, which the Chair and Deputy Chair of the TJRC have allegedly opposed.

Meanwhile, two MPs are in the process of preparing a private members Bill to reintroduce the Bill establishing the Special Tribunal in Parliament should cabinet not act. A number of MPs who initially opposed the Special Tribunal are said to have changed their stand....

Meanwhile, religious leaders continue to insist that a mechanism to punish at least the key suspects is necessary for 'full justice'.

Torture Victims, Former Mps and Activists Sue in Court for Removal of TJRC Chair

2009-08-08T09:07:00.005+02:00

A new twist in the evolving TJRC saga: A Nairobi court has allowed former torture victims and other activists to sue for the removal of the TJRC Chair, Amb Bethwel Kiplagat whom they have accused of being part of the oppressive state machine under President Moi. The Court has granted permission for them to proceed against Kiplagat with a view to invalidating the oath of office he took last week.

Meanwhile, it appears that government is unwilling to establish a complementary judicial mechanism to the TJRC. Acknowledging the role of the TJRC, the EU has warned that funding to the TJRC will be pegged to the establishment of a judicial mechanism to try key suspects linked to the post electoral violence.

Speaking in Nairobi, the Chair of the Kenya National Commission on Human Rights Ms Florence Jaoko has stated that two years granted to the TJRC is not sufficient for it to meet its broad mandate.

The Secretary general of the Central Organization of Trade Unions (COTU) Mr Francis Atwoli has hit out at dithering ministers, noting that Waki Report on Post Electoral Violence offers 'no escape route': it is either a local tribunal or The Hague (ICC).

Local Courts Not Ideal to Try Suspects

2009-08-06T16:42:00.002+02:00

As cabinet resolves to deploy local criminal courts rather than a special court, commentators argue that for a range of reasons, this is not ideal">problematic.

Former President Moi Weighs In: TJRC May Stoke Violence

2009-08-06T12:17:00.004+02:00

Former President Daniel Arap Moi has weighed into the transitional Justice debate, warning that the TJRC could unleash demons the current leaders would be unable to deal with. He warns of possible division and further violence. Having been at the helm for 24 years, he probably understands the country better than most.While he does not suggest how the government should go about it, he betrays a scintilla of hope that the process should not go ahead. Is this in self interest? Some of the darkest days in Kenya's history were spent under his Presidency....for those who suffered, but lived on.

Meanwhile, the Prime Minister Raila Odinga has defended cabinet's decision to establish a TJRC instead of a Special Tribunal recommended by Waki Commission. He noted that the threat by a section of parliament to shoot down (once again) government's attempt to pass the special tribunal law was sufficient dissuasion for cabinet.

Transitional Justice: KEY DOCUMENTS

2009-08-06T11:18:00.006+02:00

National Dialogue and Reconciliation Act (2008)

National Dialogue and Reconciliation Resolution on TJRC

Report of the Commission on Post Electoral Violence (Waki Commission), 2008

Truth, Justice and Reconciliation Act 2008

Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007 (Justice Kriegler Report).

Special Tribunal of Kenya Bill (2009)

Constitution (Amendment) Bill, 2009 (Did not pass in Parliament)

International Crimes Act, 2008.

Alston Report on Extra-judicial Killings (FEB, 2009)

President's Statement on Cabinet's Resolution on Transitional Justice (30 July 2009)

TJRC Commissioners Sworn In as Justice Minister Dares/Urges ICC to Issue Warrants

2009-08-04T11:51:00.006+02:00

Individuals recently appointed to serve on the TJRC were sworn in on Monday 2 August 2009. They are however unlikely to commence operations in view of the recently announced plans to amend the TJR Act 2008 that creates the commission to strengthen it.

Speaking at the event, Justice Minister Adv Mutula Kilonzo stated that the TJRC cannot try international crimes and suggested that the ICC should proceed with issuing arrest warrants if it considers that the relevant thresholds have been met.

This raises one important question that must be answered in respect of a possible role of the ICC: can the ICC come in? Before addressing the question as to how the ICC jurisdiction should be triggered (this has serious implications), the question is whether the violence in Kenya discloses any ICC crime: genocide, war crimes and crimes against humanity. The issues of war crimes does not arise (the situation did not disclose an armed conflict), genocide is a long shot (for a range of reasons). The Waki Commission that recommended ICC involvement suggested that crimes against humanity had been committed. However, WAKI's recommendation is problematic: the commission made no attempt to clarify what it meant by 'crimes against humanity' beyond stating that some of the attacks were 'systematic'. Its conclusion is therefor baffling. Its failure to delve into the issue invites the conclusion that its core recommendation - trial of suspects by a special local court or by the ICC - may be unfounded.

Yet until now, debate has proceeded as if crimes against humanity are a certainty. The ICC prosecutor office's suggestion that it 'will come in' should Kenyan authorities fail suggests as much. Ascertaining whether the evidence discloses an ICC crime is the OTP's next task or to the extent that Kenyan courts will be deployed, they must grapple with this issue. Until then, the call for ICC involvement in Kenya will remain empty and speculative...

Meanwhile, a new study shows that few Kenyans understand what the TJRC is about, or are skeptical about results. This does not bode well for an institution whose 'success' depends largely on legitimacy and engagement with the public...

Economic Issues, Land and Transitional Justice

2009-08-03T19:45:00.008+02:00

Unlike the majority of previous Truth Commissions around the world, the Kenyan Truth, Justice and Reconciliation Commission (TJRC)has an express economic mandate. Other thna investigating civil and political rights (torture, assassination's, arbitrary detention among others), it is required to inquire into grand corruption, land distribution and other 'historical injustices', understood to include among others, various forms of economic marginalization.

Although including economic issues in the TJRC's mandate is problematic (I address this in a future posting), there is a sense in which including such issues is not only logical, but also necessary.The narrative of grand corruption, economic crimes and economic marginalization resonates in impunity debates in Kenya.

In an excellent piece, Chris Huggins, a specialist in conflicts over land and natural resources, particularly in Africa, considers the explosive land question - identified by many as one of the root causes of conflict in Kenya - within the broader transitional justice debate.

Differing Views in Government as Anti-Prosecutions Lobby Gathers Steam

2009-08-03T10:34:00.002+02:00

After Cabinet decided to deploy the TJRC and domestic courts, differences remain in government on how best to proceed. While some Cabinet Ministers suggest that The Hague remains the best option, consensus seems to be coalescing around a local process, with an emphasis on the TJRC.

Watch events over the weekend:

Liberian TRC Exprience Holds Lessons for Kenya

2009-07-31T09:20:00.009+02:00

In what will go down as one of its most drastic recommendations, the Liberian Truth and Reconciliation Commission has recommended that a 50 individuals - leading public figures in that country-, including the serving President Sirleaf should be barred from public office for 30 years for their alleged roles in, or links to human rights violations under the then War Lord and later, President Charles Taylor.

In an Op-ed piece, Professor Makau Mutua (Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission), who chaired the Task force on the Truth Justice and Reconciliation Commission in Kenya in 2002, comments on the findings and recommendations of the Liberian TRC and argues that the Liberian TRC carries important lessons for Kenya.

Kenyan Government Ditches Idea Of Special Tribunal, Opts for Ordinary Courts and TJRC

2009-07-30T23:54:00.015+02:00

The battle that has been raging in the Kenyan Cabinet for the last two weeks over how to address post electoral violence and historical injustices has produced at least one casualty: the Special Tribunal for Kenya (STK). On 30 July 2009, Cabinet resolved to abandon the STK and deploy ordinary criminal courts instead, together with a Truth Commission with 'enhanced powers.' This decision is bound to generate controversy. While ordinary criminal courts merely replace the STK and there should be no concern as to whether the government is trying to avoid prosecutions, the history of the Kenyan judiciary's subservience to the executive leaves much to be desired.

I would not be surprised if this move were interpreted by some as inimical to the fight against impunity to the extent that it vests an important accountability role in a judiciary in which many have little faith. One commentator makes a good empirical argument why local courts are not ideal.It could be argued, that this decision defeats the essence of Waki Commission's recommendation that a Special Court supported by Special Magistrates Courts operating outside the judiciary be created to try post electoral violence suspects. It could be safely assumed that Waki Commission was not comforted by the efficiency record and rectitude of the kenyan judiciary and considered that bypassing it is essential in the current accountability efforts.

Cabinet- which had been agonising for the last three weeks, was divided into various camps on this issue. On announcing this decision, the President noted that while the government does not want to appear to favour impunity, it is important that the country moves towards reconciliation and healing.In this regard, the President noted that Cabinet had considered Five options:

i) The Special Tribunal,

ii) Referral to the International Criminal Court (ICC) under Article 14 of the Rome Statute,

iii) Withdrawal from the Rome Statute under Article 127 and repeal of the International Crimes Act, 2008

iv) The High Court under Section 8 of the International Crimes Act, 2008

v) Establish a Special High Court Division

In his statement, the President goes on to state that:

Cabinet discussed these options extensively in terms of merits and demerits.

The Cabinet took all the circumstances into account, including providing the enabling environment for the ongoing reform agenda.

Cabinet resolved it will not stand for impunity in the pursuit of justice, and the country should pursue national healing and reconciliation. Therefore, the Cabinet:

i) Reaffirmed its commitment to rule of law, and in particular in its commitment to the International Criminal Court and will co-operate and fulfill its obligations to the Court;

ii) Will undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally;

iii) Deal with other forms of impunity including extra-judicial killings, corruption, and unlawful acquisition of public land and other assets;

iv) Propose amendments to the Truth Justice and Reconciliation Act to make the TJRC more representative and effective.

Cabinet is confident that with proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence.

However, the decision to use ordinary criminal courts raises several concerns. The role of the Attorney General, one of the more criticised officers in the land will once again come under scrutiny. The AG is vested with overral prosecutorial powers under s 26 of the Constitution and will - despite the criticisms that he has failed to discharge those duties well in the past - be solely responsible for preparing cases and mounting prosecutions. I suspect that the AG's powers to discontinue any case brought before the courts without giving reasons ( nolle proseque powers) will be cited as problematic.

In discrediting this new move from the government, I see commentators and civil society pointing to the fact that the same courts have been tested and have failed in prosecuting individuals linked to the post-electoral violence. It may be recalled that the only two cases ever brought to Court-that of Jackson Kibor (for alleged incitement to violence) and the 'Kiambaa Four' for their alleged role in the Church fire that killed several people collapsed for various reasons.

While Kenya is a a sovereign state, and bears the primary responsibility to prosecute crimes, international observers in particular the ICC Prosecutor will want assurances that this process is not being created solely for letting suspects off the hook - that it is not a sham process and that it has prospects of dispensing fair and credible justice.
Failure to meet this criteria will invite the ICC, within the Rome Statute's complementarity framework.

It is also being suggested that the Truth Justice and Reconciliation Commission (TJRC) will be strengthened, and its membership made more widely acceptable. It is not clear what additional powers will be vested in it, although the membership issue suggests that the government is alive to the criticisms voiced over some of the commissioners recently appointed to the TJRC (see earlier blog below) and may replace them or expand its membership.

One group that is likely to 'suffer injustice' as a result of the decision to deploy ordinary criminal courts are victims: not so much for the diminished possibility of speedy, fair and credible prosecutions of perpetrators as for the loss of rights granted to them under the proposed Special Tribunal law. The proposed law granted to victims rights akin to those introduced in international criminal law by the Rome Statute of the International Criminal Court (art 68.3): the right to participate at all stages in criminal proceedings and the right to reparations. These rights do not exist in Kenya's criminal law, which follows a common law tradition in terms of which victims of crime have no right to participate in criminal proceedings beyond the role of witnesses. Equally, reparations can only be claimed in a civil proceeding separate from the criminal case. There are no examples that I know of where victims - who are for the most part unaware of this right, and would in any case be unable to afford such an expensive venture - have brought such suits after the conclusion of the criminal case. The matter usually ends with conviction and criminal sentence which may include a fine that goes to the state, and not the victim of the crime. Even where a suspect is responsible for the injury suffered, but the prosecution is unable to prove the case beyond reasonable doubt- therefore no conviction- the court cannot order reparations. The STK would have afforded an opportunity for the Kenyan criminal justice system to begin to grapple with the new dimension introduced in in international criminal law by the ICC. Despite the complexity involved, judging from current practice at the ICC, the opportunity to inaugurate a victim sensitive criminal justice system seems to have been lost ....

Without a clear transitional justice policy, the government's continuing ad hoc approach leaves much to be desired. It remains to be seen whether more light will be shed on these new proposals. What is for sure is that a new stage in this debate has just began...

Transitional Justice Debate in Kenya Unfolds in Near Policy Vacuum and Ethnic Tension

2009-07-29T18:30:00.005+02:00

When one dissects the transitional justice debate in Kenya, and the steps taken by the government so far, it becomes immediately apparent that the approach adopted with respect to the broader question of transitional justice is for the most part ad hoc and disjointed. The lack of a transitional justice policy, or a coordinated approach is a foundational problem for the accountability process in Kenya, which relates not only to addressing historical injustices since 1963, but also to a specific event - post electoral violence between 27 Dec 2007 and 28 Feb 2008. I have commented on the policy and political context in which this process is evolving in a working paper to Oxford University's Center for Socio-Legal Studies Transitional Justice Research Project, I will therefore not reproduce it here. Click on the title above, it will link you to that article ....

Truth Commission Created in Kenya

2009-07-24T11:07:00.005+02:00

On 22 July 2009, the Kenyan President Mwai Kibaki has named a nine-person Truth Justice and Reconciliation Commission (TJRC) established under the Truth Justice and Reconciliation Act 2008. The Commission is apart of a bundle of reform measures (Agenda Four) agreed upon between the President 's Party and Prime Minister Raila Odinga's party after the disputed presidential elections of December 27, 2007. The violence claimed close to 1300 lives, billions worth of property destroyed and 500,000 people displaced.

The TJRC is mandated to inquire into historical injustices since 1963: gross human rights violations, abuse of power, corruption and economic crimes. A commission established to probe the post electoral violence recommended the creation of a Special Tribunal for Kenya (STK) to try those who bear the greatest responsibility for crimes against humanity allegedly committed during that period (Dec 27 2007 - Feb 28, 2008 when the National Accord was signed between Kibaki and Odinga to establish a Government of National Unity).

With the Prosecutor of the International Criminal Court (ICC) watching developments in Kenya, the government is divided on what should be done: whether the STK should be established or not; whether crimes should be tried before ordinary criminal courts in Kenya; whether in fact there should be no trials at all and the TJRC deployed instead. The appointment of the TJRC Commissioners came amid this rancorous debate in Cabinet. The question is whether the President sees the TJRC as the answer for calls for prosecutions either in Kenya or in The Hague at the ICC. If crimes committed during the post electoral violence amount to crimes against humanity, there is an imperative that trials be staged, at least in respect of the most responsible individuals. I say if because this question remains to be answered. While there is an assumption that such an international crime was committed, there seems to be no evidence in the public realm to back it up. The Waki Commission that recommended the establishment of the STK or ICC involvement and named several individuals (in a secret list recently handed over to the ICC by Koffi Annan) did not interrogate this issue at all. Reports by a number of civil society organizations (CSOs) and the Kenya National Commission on Human Rights are unhelpful on this issue.

It remains to be seen how this issue evolves. The relationship between the TJRC, STK and national courts is yet to be clarified in any detail although the STK's mandate will be limited to the post electoral violence.What seems sure is that the TJRC has an important role to play in at least shedding light on Kenya's troubled history.

AU decision on Al Bashir Arrest Warrant Causes Uproar

2009-07-23T20:21:00.006+02:00

This link is an audio file of an interview given to Alex Bell of Diaspora Diaries, examining the resolution adopted by the African Union (AU) on 3 July 2009 to ignore the arrest warrant issued by the International Criminal Court for Sudanese President Omar al-Bashir. I consider various issues and the complexities behind the AU's resolution.