Please find the below article written by Allan Ngari, Project Leader dealing with Kenya and International Justice at the Institute for Justice and Reconciliation. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

There has been a fair amount of jostling around by the government of Kenya in the international community since the naming by the International Criminal Court (ICC) Prosecutor in December 2010 of six Kenyans as being the most responsible for the violence that erupted in the country following the disputed Presidential elections in 2007. Kenya wants to prevent its nationals from being subjected to the international criminal justice processes. In essence the Kenyan cases place the complementarity principle – able and willing local courts have first preference to the ICC to investigate and prosecute international crimes committed in their territories – under a rigorous test of its efficacy.

Last month, the East Africa Legislative Assembly passed a motion to allow the East African Court of Justice to request the transfer of the ICC trials of four Kenyans, including Uhuru Kenyatta (Deputy Prime Minister, son of the Kenya’s first President and currently a presidential aspirant) to the Arusha-based East African Court of Justice. The resolution has been met by stiff criticism. The East African Law Society has questioned the practicality of the resolution by the Assembly in the face of the latest draft of the East African Community (EAC) Protocol on extending the jurisdiction of the East African Court of Justice, in which all the EAC members agreed to exclude any reference to human rights adjudication by the court.

This is not the first time that Kenya attempts to exclude the ICC from conducting trials of the four accused persons for crimes related to the post-election violence (PEV). Kenya challenged the admissibility of the cases before the ICC in 2011 citing the capacity of its new constitutional framework to handle these crimes. The Pre-Trial Chamber decided against Kenya’s challenge citing that the only condition to be satisfied by Kenya in order for the cases to be transferred to local courts is the so-called “same person, same conduct rule,” which means that Kenya needs to demonstrate that its criminal justice system is investigating the ICC suspects for the same crimes that the ICC is seized. A cursory analysis of the rulings would conclude that the task before Kenya is then very simple – demonstrate to the ICC that investigations have commenced and assert the doctrine of complementarity. There is however more than meets the eye in this situation. Kenya has indeed undergone a radical constitutional change with credible systems being put in place to ensure good governance and the respect for the rule of law. The issue seems to be the profile of the four individuals who are to face trial in The Hague. Under the circumstances, can Kenya genuinely claim inability to commence investigations on the four accused persons or is it a case of unwillingness so to act?

Being dissatisfied with the ICC ruling, Kenya with the support of the African Union (AU) approached the United Nations Security Council (UNSC), empowered by the ICC Statute, to request the ICC to defer investigations in Kenya for a period of one year. The UNSC did not reply to this request thereby sending the AU back into its drawing room for more resolutions calling for the non-cooperation of all African States Parties with the ICC. There is no doubt that a bitter taste has been left on the Kenyan and AU palates with regards to their interface with the ICC.

A more recent development indirectly linked but noteworthy to the ICC Kenya cases is the expansion of the jurisdiction of the African Court of Justice and Human Rights to conduct individual criminal prosecutions. Justice Ministers and Attorneys General from the African continent are meeting in Addis Ababa, Ethiopia on May 7-11, 2012 to consider adopting a protocol that will confer this type of jurisdiction to the African Court. Civil society organizations working in Africa have written to these experts articulating the deficiencies of the protocol. Expansion of the African Court’s jurisdiction risks “diluting the work of the current African Court on Human and Peoples’ Rights and may undermine human rights protection.” This proposed expansion is at variance with the practice of other regional systems such as the Inter-American Human Rights Court and the European Court of Human Rights both of which have delivered rulings on landmark cases that promote the respect for human rights. Whereas precedent-setting by the African human rights protection system is encouraged, expanding the jurisdiction as proposed is a sure recipe for a complex process, expensive and inevitably delayed justice. A dual approach of adjudicating allegations of human rights violations by African States and jurisdiction for individual criminal responsibility for international crimes defeats the ends of justice. Some commentators find this move to be shrouded in a protectionist agenda by and for African leaders and their criminal allies from facing the music at the ICC. There is little or no confidence that these proposed jurisdictional expansions of regional courts by African leaders is in support of combating impunity for international crimes on the continent.

The fallacy of these attempts to stop the ICC trials in Kenya, is that complementarity, which is the cornerstone of the functioning of the ICC, supports national criminal jurisdictions and not regional courts superimposed with international criminal jurisdiction. Where a matter is before the ICC such as the cases relating to the four Kenyans, the Rome Statute is clear that only a State with jurisdiction to investigate and try persons accused of committing the international crimes can challenge the jurisdiction or admissibility of cases and if successful, it is only to that state that cases can be transferred. There is no support in the existing legal framework of the ICC for cases to be referred, transferred or deferred to regional courts such as the East African Court of Justice or the African Court of Justice and Human Rights.

Kenya’s President is committed to ensuring that the four accused attend local trials following a Report submitted by a Government Working Committee on the ICC. The Committee reports that “provisions set out in …the Constitution…could permit Kenya to have jurisdiction in respect of crimes under international law at the time of the PEV.” The ICC has constituted a Trial Chamber for the Kenyan cases and its Spokesperson clarified that the Chamber is ready to start its work. As the country prepares for its elections, the coming months will tell whether Kenya will successfully challenge the admissibility of the ICC cases after conforming to complementarity requirements or stand back and watch the ICC conduct the trials, while also submitting to periodic requests for the country’s cooperation with the Court.