The International Criminal Court (ICC) Prosecutor Mrs Fatou Bensouda will be in Kenya from 22-26 October, 2012. Reports from the Office of the Prosecutor (OTP) state that the purpose of Mrs. Bensouda and her team’s trip to Kenya will primarily be to visit victims of the post-election violence as well as to obtain crucial information that would support the prosecution’s cases against four Kenyans whose trials will commence at the ICC next year in April.

A few weeks ago, the Head of Jurisdiction, Complementarity and Cooperation at the OTP Mr Phakiso Mochochoko, wrote to Kenya’s Attorney General (AG) Prof Githu Muigai expressing disappointment for a lack of effective cooperation by Kenya with the OTP. The OTP has been seeking Kenya’s cooperation in obtaining information from different government agencies. Kenya is obligated under Article 86 of the Rome Statute to cooperate with the ICC. The AG blamed the delay in cooperating with the OTP on the failure of certain government agencies who possess the required information to quickly respond to the OTP’s request. The AG has reiterated that Kenya remains committed to her obligations under the Rome Statute. Prof Muigai has also praised Mrs Bensouda’s better approach to her mandate and relations with States Parties to the Rome Statute that created the ICC than her predecessor Mr Louis Moreno-Ocampo. However as Chief Legal Advisor to the government of Kenya, it is his responsibility to ensure that Kenya abides by its international commitments.

It is clear in the past few months that Mrs. Bensouda has been in office as Chief Prosecutor that she has a different leadership style to her predecessor who was shrouded with controversy over his sometimes boisterous approach to his mandate. With such a start to her mandate, the Fatou Effect as I have called it elsewhere is bound to have a more persuasive, endearing and results-oriented function about the OTP. This is a good thing and necessitates cordial relationships between the ICC situation countries and the OTP. Often the first or more prominent organ in the interface between a situation country and the ICC, it is important that the OTP establishes and maintains the right approach to prosecutions and investigations and Fatou has clearly understood this.

For Kenya, a visit form the ICC Chief Prosecutor can be used to mend fences where the relationship between government and the ICC was strained following Ocampo’s initiation of investigations in the country. We should not however forget that Fatou was the Deputy Prosecutor at the time when the ICC Pre-Trial Chamber authorized OTP’s investigations into Kenya, and it is unlikely that her sentiments on the prosecutions and investigations in Kenya have changed since her taking office as Chief Prosecutor. Rather the Fatou we see now, is seasoned with the experiences – both failings and successes of the OTP over the past 10 years of its operations, which no doubt inform the prosecutorial strategy for the Kenya cases.

Cooperation by States Parties with the ICC can be a two-way street. Within the ambit of positive complementarity – a concept that solidified its footing at the Kampala Review Conference of the ICC’s founding treaty in 2010 – Kenya can request for the support of the ICC in effectively investigating and prosecuting individuals suspected of committing crimes related to the post-election violence. We are certainly not referring to local prosecution for the four Kenyans whose trials are scheduled to start in April 2013, but rather the many other perpetrators of crimes following the 2007 elections in Kenya. The OTP is on record stating that although it will not provide financial support to States that ask for support under the positive complementarity principle, it can provide technical and logistical assistance. Kenya can benefit from the visit by the OTP to request for such assistance. It is important in this transition that Kenya deals with its past and that the many victims of the crimes committed following the 2007 elections are redressed.

In August 2012, a task force set up by Kenya’s Director of Public Prosecutions (DPP) Mr Keriako Tobiko to look into the thousands of files at the DPP’s office relating to the PEV released an interim report with findings that many of the files may have to be closed because evidence that would be necessary to adduce before court for convictions is non-existent. This means that many victims of the PEV will not receive the justice that they have sought for the past five years. There still remain opportunities for meaningful cooperation that would benefit both Kenya and the OTP on matters relating to prosecutions and investigations in Kenya. It will take the concerted efforts of the relevant Kenyan authorities to bring this about.


Kenya: At a Political Crossroads

Kenyans are set to go to the polls for general elections in March 2013, and will once again have the opportunity to cast their votes and elect new leaders. History has shown, however, that political contestation has not always been smooth sailing, and many past elections have been marred by irregularities. Most notably, the 2007 elections led to a national dispute over the outcome of the presidential race, and ultimately the outbreak of widespread violence. Electoral irregularities and resultant conflict are not inevitable – in 2002, the Kenya African National Union party suffered a landslide defeat after forty years of near autocratic rule – but when these do occur they reverberate through the East African region and across the continent as a whole. Anticipation, and the sensitivity around successful elections is therefore of great concern to more than just the Kenyan people.

Kenya’s fate as a country in transition was sealed by the tragic post-election violence that occurred in December 2007 and January 2008. A number of institutions have since been established to deal not only with this recent conflict, but also with a longer legacy of injustice since independence in 1963. Some of these institutions have already concluded their work, including the Commission for the Investigation of Post Election Violence and the Independent Review Commission, which recommended far-reaching changes in electoral processes and the disbandment of the Electoral Commission of Kenya in the aftermath of the events of 2007.

The work of the Truth, Justice and Reconciliation Commission (TJRC) will soon draw to a close after its mandate was extended following resolution of a dispute among commissioners concerning the appointment of a Chair – one which unfortunately planned the better part of the life of the commission overall. Despite resultant challenges to its credibility, as well as budgetary constraints, the commission will release a long-awaited and important report providing a narrative on sensitive and historic issues in Kenya’s past. It is hoped that this process will lead to a collective and consensus-based truth that a majority of Kenyans are able to agree upon.

The belief, however, that the TJRC’s report may lead to the possibility of re-opening national wounds or exacerbating political tensions, particularly by candidates in the run-up to elections, has prompted some calls for the document to be embargoed until polling has concluded next year. It is plausible that its content, which will shed light on events spanning the post-independence period, may be used to sow more divisions in an already fragmented country. It will be a true test of the functioning of the National Cohesion and Integration Commission (NCIC), also formed after the violence and unrest of 2007, to chart the direction for a more unified country.

The NCIC may further be pushed to prosecute leaders and candidates for hate speech in cases in which this could lead to divisive or tribal politics or ‘ethnicism’ as it is mandated to do through the National Cohesion and Integration Act that legislated its formation. A range of other outstanding issues must also be addressed before Kenya can hold elections. The new constitution promulgated in August 2010, a further outcome of the 2008 political settlement, created numerous new elective posts that need to be enacted in law and implemented in practice. Parliament has had the unenviable task of numerous, long and intensive sittings to debate, amend and pass legislation consistent with the new constitutional framework. This has not been an easy task, as many of the new laws and policies under consideration involve the very issues that threaten to tear Kenyans apart – including access to land, equitable distribution of resources and devolved governance structures.

The International Criminal Court’s (ICC) interventions in Kenya are also bound to affect the country’s future. Two of the four Kenyans charged with responsibility for the post-election violence are presidential aspirants and come from ethnic groups that have dominated this highest office – Uhuru Kenyatta, deputy prime minister and son of Kenya’s first president, and a former Cabinet minister, William Ruto. These external interventions have become increasingly politicised in the lead-up to the trials of the accused, and leaders of some ethnic groups have denounced the ICC investigations as attacks on their own communities, and attempts to eliminate specific candidates from the run for the presidency. These seeds of discontent, if not carefully managed, could erupt into violence.

Meanwhile, the resettlement of those internally displaced by the post-election violence continues with varied success. Government’s efforts in this area must be acknowledged, although much more work and support for victims is needed. In this regard, beyond the ICC interventions, perpetrators of these crimes have not yet been brought to account in most cases. Where some prosecutions have been initiated, criminal cases have often been thrown out of court, sometimes as a result of the poor quality of investigations. Concerted efforts must be made to remedy this situation.

Yet while the past five years have marked a difficult transitional phase for Kenya, tentative gains have certainly been made in growing political stability and democracy, working towards greater respect for the rule of law, and opening up a national dialogue about the country’s past and future. Successful and peaceful elections in 2013 may solidify these ideals and serve as a benchmark for a successful transition in Kenya.

This piece first appeared in South Africa Reconciliation Barometer Newsletter Volume 10, 2012 also available at

A Story of Perseverance

These photographs were taken at a place called Wiyumiririe, a Kikuyu word meaning perseverance on 28 March 2012. I was on my way from Eldoret in the Rift Valley to Isiolo in Lower Eastern for dialogues with communities in those towns on their views concerning national reconciliation. The people captured in the photographs represent 1,500 families who were internally displaced following the post 2007 election violence in Kenya and are being resettled on this land which is approximately 5,000 acres. The make-shift structures are very similar to the houses they constructed for themselves while they lived at the IDP camp Mawingu, which is Swahili for clouds. It is at Mawingu that they fled to for safety when the violence erupted in Rift Valley.

Wiyumiririe is befitting of the endurance of these victims of the violence. Theirs is a true story of perseverance. This resettlement effort by the Government of Kenya is one of the many initiated country-wide to respond to the urgent need to resettle approximately 600,000 individuals who were displaced from their homes following waves of attacks in late 2007 and early 2008.

The District Commissioner whom I met that afternoon informed me that the last of the IDPs to be resettled at Wiyumiririe were scheduled to arrive later that afternoon. Shortly thereafter two bus-loads of people arrived. There was a visible excitement among the new residents of Wiyumiririe. Those on the ground were running to meet their friends and loved ones in the buses. Many of the resettled people shared their joy in finally have places they can call home.

Kenya’s Ongoing Battle with Complementarity at the ICC

There has been a fair amount of jostling around by the government of Kenya in the international community since the naming by the 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.

This article is a preview of the author’s piece in an upcoming African Edition of the SARB Newsletter soon to be available at  

An ongoing search for Kenya’s panacea

Kenya’s fate as a country struggling with transition was sealed when violence erupted following the publication of the results of highly contested presidential elections at the end of 2007. Almost four years later, in September 2011, the ICC Pre-Trial Chamber II began hearings to confirm charges in two significant cases involving six Kenyans suspected of bearing the greatest responsibility for the December 2007 to January 2008 post-election violence.

These hearings began after the ICC Appeals Chamber conclusively decided in late August that the two cases before the court were admissible. The ICC rejected submissions by the government of Kenya expressing its ability and willingness to handle the post-election violence prosecutions on its own. It is expected that the Pre-Trial Chamber will deliver its ruling to confirm or deny the prosecutor’s charges against the six suspects by the end of this year.

Critically, this decision will certainly shape the course of political manoeuvring in Kenya as preparations gear up for the next general election, expected to be held towards the end of 2012. Stern warnings have already been issued against incendiary statements, and particularly those that may heighten political tension and/or increase the possibility of a repeat of past violent conflict. The so-called ‘Ocampo Six’, named with reference to the ICC
Chief Prosecutor, include deputy prime minister, finance minister and possible presidential candidate Uhuru Kenyatta, as well as other senior public servants and influential political leaders.

However, the tone of the 2012 polls will also be inescapably set by deeply rooted political and historic forces, with influence far beyond that of the ICC’s intervention.

Parallel to the gaining momentum of the ICC process, Kenya’s political elite and their followers have been cruising towards the national election. The work of the Court, in fact, appears to have had only a limited impact on the fluid mindset of the political class. Similar to other pre-election periods in the country, shifts in affiliations and formations of new political alliances for preferential presidential candidates remain a constant feature.

The truth beneath the surface in this seemingly peaceful East African country is that elections have always been a show of Kenya’s limited success in dealing with its lurking demons of ethno-political intolerance. In 48 years of independence, state patronage in dispensing the country’s bounty has always been circumscribed along ethno-political lines. With each regime change has come an inevitable vilification of the preceding government as having been incapable of confronting the nation’s challenges and of realising the proverbial golden pot at the end of the rainbow. Numerous ethnic communities are disenfranchised through these processes, evoking uneasy analogies to the plight of the majority of black South Africans under apartheid. And though Kenya’s ethnic divisions are less blatantly segregating than the policies of apartheid, corruption, the embezzlement of state resources and irregular land allocation based on political favours remain rife, and these have far-reaching effects on ordinary citizens.

As long as significant divides persist along ethnic lines, prospects of future electoral violence remain a real possibility. In this respect, little has changed since the ICC’s intervention. Prosecutorial zealots have argued in response that the Court should not
be seen as a panacea for Kenya’s problems. The arm of the law can only go so far in bringing about profound social change; rather, it has been used with more success to address impunity gaps, for example.

However, both domestic and international law have also arguably lagged behind some of the most pressing challenges of the times. The Rome Statute of the ICC, adopted in 1998, is the first international treaty to codify the crime of apartheid – ‘committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’ (Article 7.1[h]) – as a crime against humanity. This is laudable, but South African apartheid is now a monster of the past, slain by universal suffrage in 1994 well before the adoption of the Rome Statute. Although the effects of apartheid policies are felt to this day, these effects are not criminalised and neither is there the capacity or the political goodwill to conceive of such a criminalisation. These lingering effects of oppressive regimes and armed conflict often eat into whatever is left of the remaining societal fabric.

It does appear that the tone and intensity of political verbiage around ethnicity in Kenya has changed since the commencement of the ICC interventions. There have been significant steps towards promoting national reconciliation and social cohesion through national institutions such as the National Cohesion and Integration Commission among others. Tribal politics seems to be getting less coverage. The current cases before the ICC have also ensured that the issue of inter-ethnic differences remains a prominent issue in public discourse in a manner that cultural practices traditionally have not allowed. In many ethnic communities in Kenya, it is culturally unacceptable to confront wrong-doing, particularly when the offender is in a position of authority. This practice has, in some places, prevented open confrontation and critique of the underlying causes behind the electoral clashes of 2007.

What now needs to happen, beyond the current cases before the ICC and indeed the Court’s remit altogether, is substantive work to build lasting social cohesion across Kenya’s ethnic groupings. This will be essential for sustainable peace in the country. This cohesion must go beyond mere tolerance and coexistence, and should not rely on coercion to enforce cordial relations where deep-rooted resentment remains. Rather, these negative sentiments among ethnic groups must be challenged and resolved in order to build a cohesive nation, within a context of celebrating the good practices of cultural diversity.

Kenya is not alone in this challenge of social cohesion, which can also be found in other nations in transition on the continent. Perhaps as a continent, through the offices of inter-governmental agencies such as the African Union and civil society organisations, and even through communities and individual efforts, we should identify these challenges as universal but focus on localised and locally owned solutions. Failure to do so will compromise our efforts towards justice and reconciliation across Africa.

This article was first posted on the SARB Newsletter Vol 9 2011 available at