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.
Friday, November 6, 2009
Thursday, November 5, 2009
Kenya: Prosecutor to Invoke Proprio Motu Power As GNU Pledges Cooperation
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:
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:
Tuesday, October 27, 2009
Kenya: The Need To Support the TJRC
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
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.
Thursday, October 22, 2009
Kenya: Creating Space for the TJRC, 1970 Indemnity Law To Be Repealed
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.
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.
Wednesday, October 14, 2009
Ocampo Arrival Postponed
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....
Tuesday, October 6, 2009
Kenya: ICC Prosecutor Will Have to Act on His Own
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....
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....
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