A new report has recommended a review of the proposed jurisdiction of a yet-to-be-set-up International Crimes Division of the Kenyan High Court because it is too wide, and it has also recommended that more thought is needed on how it will be established.

The report also concluded that proposals on how the International Crimes Division will handle cases emanating from the violence that shook up Kenya after the December 2007 presidential election are bound to face constitutional and other challenges if they are not changed.

On August 8, Kenyans for Peace with Truth and Justice (KPTJ) released a report titled A Real Option for Justice? that analyzes proposals on how an International Crimes Division of the High Court of Kenya could be formed. Some of those proposals dovetail with parts of an application the government made to the International Criminal Court (ICC) during the pre-trial phase of the Kenya cases there. KPTJ is a coalition of citizens and organizations working in the human rights, governance, and legal fields that came together during the crisis over the disputed results of the 2007 presidential election.

The proposals on an International Crimes Division form part of a 154-page report of a committee of the Judicial Service Commission that looked into the issue. The Judicial Service Commission is the Kenyan judiciary’s top decision-making organ that shapes policy and handles the appointment and discipline of judges, among other issues. The committee’s report has not been publicly published to date. It has, however, been circulated among organizations concerned with the issue of how to bring to justice suspected perpetrators of the bloodshed that occurred between December 2007 and February 2008.

A Real Option for Justice? noted that the committee’s report proposes the International Crimes Division handle both crimes against humanity and related crimes as well as transnational and organized crimes such as drug trafficking, terrorism, and piracy. The KPTJ report has observed that the reason for this proposal is unclear.

“This is intriguing given the fact that the criminal justice system has had no problems prosecuting transnational crimes with some success, even in the absence of a specialised division of the High Court,” stated the KPTJ report.

During the pre-trial phase of the Kenya cases at the International Criminal Court, the government used this success of the criminal justice system in handling piracy cases to argue the ICC should not take on the Kenya cases. The government did this in its admissibility application to Pre-Trial Chamber II in Kenya case one and case two, further arguing Kenya’s criminal justice system was undergoing reforms that would enable it handle cases involving powerful and influential individuals suspected of being involved in crimes against humanity.

As evidence of this, the government annexed to its application five documents showing the number and variety of cases against suspected Somali pirates the Kenyan criminal justice system was handling and the international support it was receiving for those cases. Pre-Trial Chamber II noted that these documents were not directly relevant to the question of whether the Kenya cases were admissible at the ICC and dismissed the application in both case one  and case two.

The KPTJ report observed that adding a piracy and other transnational and organized crimes mandate to the proposed International Crimes Division would mean changing the existing chain of adjudication where such cases are first handled at the magistrate’s court level with appeals going to the High Court, Court of Appeal, and possibly all the way to the Supreme Court.

“Removing these crimes from the ambit of magistrates’ courts and giving the jurisdiction to prosecute them to a division of the High Court would require a change in legislation and cannot simply be done by the Chief Justice through a gazette notice, as the JSC report seems to envisage,” concluded the KPTJ report.

Another concern the KPTJ report raised is the question of retroactivity. Crimes against humanity, war crimes, and genocide were not crimes in Kenyan law before January 2009. This raises the question of how to prosecute suspected perpetrators of the bloodshed that followed the December 2007 presidential poll that affected large parts of Kenya. Suspected perpetrators could be tried for crimes such as murder, rape, and arson because those existed in Kenyan law at the time. However, a prosecutor could not make a case beyond individual murders or rapes to argue crimes against humanity were committed in the country because Kenyan law had no provision for that at the time.

KPTJ noted that the Judicial Service Commission report argued that Kenya’s constitution states that any international treaty ratified by Kenya is law in the country, and this addresses any question around retroactivity. Therefore, according to this argument, crimes against humanity and related crimes can be prosecuted in Kenya because two years before the post-election violence, in 2005, the country ratified the Rome Statute that governs the work of the International Criminal Court. This is also the argument that the government made in its admissibility application, which was eventually rejected by Pre-Trial Chamber II and the Appeals Chamber of the ICC.

The issue is not as straight forward as that, according to the KPTJ report, because in 2009 Kenya passed the International Crimes Act, the law that makes the ICC’s Rome Statute Kenyan law. This was necessary at the time because under Kenya’s old constitution, an international treaty did not automatically become Kenyan law as soon as Kenya ratified it. The KPTJ report argued that because the International Crimes Act became law after the post-election violence then this could expose the work of the proposed the International Crimes Division to constitutional challenges.

In fact, this is one of the arguments the lawyer for journalist Walter Barasa has made in the Kenyan courts in the matter concerning the arrest warrant the ICC has issued against Barasa.

The better route, according to the KPTJ report, would be for Kenya to adopt the approach of East Timor, the Democratic Republic of Congo, and Rwanda on the issue. These countries have passed legislation that allowed specific crimes to be tried retroactively for a specific time, the KPTJ report stated.

“There has to be a limited scope in which the retroactivity provision operates, in order to prevent states from assuming unlimited power and potentially abusing this provision,” the KPTJ report stated further.

Another key recommendation of the KPTJ report is that the creation of the International Crimes Division should be through legislation rather than a gazette notice by the Chief Justice as proposed in the Judicial Service Commission report. The KPTJ report recognized that it would not be easy getting the required support in parliament but argued legislation was the preferred route.

“This will insulate the process of investigation and prosecution from subsequent political interference whilst providing a legal basis both for funding as well as administrative functions such as issuance of summons,” the KPTJ report stated.

“A statute would also provide a legal framework for engagement with experts in international criminal justice, allowing for the possible secondment of international actors, such as prosecutors and possibly judicial officers. The statute would also regulate the qualifications of persons to be appointed as prosecutors,” the KPTJ report concluded.

The idea of a specialized division of the High Court trying as many suspected perpetrators as possible has been floating about in Kenya for the past five years. The proposal came after Parliament’s failure in 2009 to pass a law establishing a special tribunal to handle the post-election violence cases. This idea has been debated because it is now generally accepted that the ICC can only try a few individuals and certainly not the low and mid-level suspected perpetrators. The debate about how to try the suspected perpetrators of the post-election violence has continued for years in Kenya because few cases have actually been taken to court locally or internationally, yet many of the victims continue to ask for justice.

At present Deputy President William Sameoi Ruto and former radio journalist Joshua arap Sang are on trial at the ICC for their alleged roles during the violence that followed the December 2007 election. The trial of President Uhuru Muigai Kenyatta for his alleged role in that bloodshed is scheduled to start in October at the ICC.

The complete KPTJ report is available here.