Options for Transitional Justice in Kenya

The debate in Kenya around how to bring justice to the perpetrators of the post election violence that erupted in 2007 rages on. The options discussed by cabinet earlier this year included establishing a special criminal tribunal, setting up a dedicated division of the Kenyan High Court, referring suspects to the International Criminal Court (ICC) in The Hague, or utilizing the country’s ordinary criminal courts together with the Truth Justice and Reconciliation Commission (TJRC).

Published on 16 October 2009 in ISS Today

Jemima Njeri Kariri, Senior Researcher, International Crime in Africa Programme, ISS Pretoria

The debate in Kenya around how to bring justice to the perpetrators of the post election violence that erupted in 2007 rages on. The options discussed by cabinet earlier this year included establishing a special criminal tribunal, setting up a dedicated division of the Kenyan High Court, referring suspects to the International Criminal Court (ICC) in The Hague, or utilizing the country’s ordinary criminal courts together with the Truth Justice and Reconciliation Commission (TJRC). Despite calls for an approach that combines international and domestic justice mechanisms, recent pronouncements by the country’s leaders indicate their preference, at least at this stage, for purely local options.

The debate has come a long way. When Kenya’s cabinet rejected the establishment of a Special Tribunal on 30 July 2009, a section of civil society argued for the immediate involvement of the ICC. Over the next few months the government missed a number of deadlines to set up a domestic judicial mechanism to prosecute the suspects of the violence. Frustrated by the lack of progress, Kofi Annan - the African Union’s (AU) chief mediator of the conflict - submitted the names of the masterminds of the violence to the Prosecutor of the ICC.

In October 2009, Annan traveled to Kenya for consultations with the country’s leadership on the way forward. Their discussions focused on whether a Special Tribunal or an ordinary domestic criminal court process should be deployed alongside the TJRC, and what the role of the ICC could or should be. Although Annan proposed domestic processes supported by the ICC, final agreement on the role of Court was not reached.

Furthermore, the ICC Prosecutor, Luis Moreno Ocampo, added his voice to these discussions and proposed ‘a three-tier approach’ for dealing with the perpetrators of the post-election violence in Kenya through:

This proposal contains a good mixture of local and international justice remedies, both of which, in theory at least, are possible in Kenya. The country is a signatory to the Rome Statute that establishes the ICC, and has domesticated its ICC obligations through the International Crimes Act, 2008. This Act provides the legal framework to prosecute offenders for international crimes committed during the post-election violence before domestic courts. The International Crimes Act also contains provisions that facilitate cooperation with the ICC where required. Kenya also has a TJRC that was established under the TJRC Act of 2008, to probe human rights violations, corruption and other economic crimes from 1963 to 2008.

One aspect worthy of further reflection is the role of truth commissions in situations where the ICC could potentially be involved. The main issue, it seems, is whether the Kenyan TJRC meets the requirements of complementarity as contained in the ICC Statute, and which gives priority to national processes.

The ICC is a court of last resort in these situations and can only intervene if the state is ‘unwilling or unable genuinely to carry out the investigation or prosecution’ (Article 17(1)(a)). Unwillingness is defined in Article 17(2) as the initiation of proceedings created ‘for the purpose of shielding the person concerned from criminal responsibility’, or in a context where proceedings are unduly delayed or conducted in a manner ‘inconsistent with an intent to bring the person concerned to justice’. Inability is defined under Article 17(3) to include a lack of institutional capacity, as well as the ‘availability’ of the national judicial system.  This may be interpreted to also include non-prosecutorial processes such as the TJRC and Truth and Reconciliation Commissions (TRC) among other mechanisms.

For the TJRC to meet this complementarity test in relation to the post-election violence, its mandate and powers would have to be broadened or changed. Many do not think this is a good idea. They argue that taking on the post-election violence cases would overstretch the already over-burdened commission, thereby undermining the credibility of the TJRC process (which is already under some scrutiny). In addition, while the violence falls within its temporal jurisdiction, currently the TJRC cannot grant amnesty for crimes against humanity. Moreover the TJRC does not have prosecutorial powers, but can only act as a transitional justice mechanism through truth telling and the collection of evidence from victims to be handed over to the prosecuting authorities, if it raises strong evidence that crimes against humanity have been committed.

Following the most recent meeting between Annan and Kenya’s most senior leadership, the government allegedly declined to formally request the ICC Prosecutor to take over the cases of the prime suspects.  The leadership did, however, invite the Prosecutor to write to the government to request a meeting to discuss the way forward. Mr Ocampo has already sent communication and the Principles have met to discuss when such a meeting should take place. As such, the ICC still remains an option although it would probably only deal with a handful of the most senior masterminds of the violence while the bulk of the trials would take place before ordinary Kenyan criminal courts. 

However, it now seems clear that prosecutions before domestic Kenyan criminal courts supported by transitional justice processes before the TJRC remain the government’s preferred option. The TJRC is an important mechanism to clarify the facts about past human rights violations, abuses and historical injustices; to collect and preserve evidence that could feed into criminal investigations and judicial proceedings against alleged perpetrators and to formulate effective recommendations to the authorities for providing reparations to victims for past violations and abuses. However, the relationship between the TJRC and criminal prosecutions (domestic and international) still needs to be worked out.

The Prosecutor of the ICC will no doubt monitor these developments closely. Should Kenyan politics prevent the credible prosecution of perpetrators of the post-election violence, then the Prosecutor has the option to invoke his Statute-given powers to commence investigations on his own. He is sure to find support from a number of Kenyan civil society organisations and victims of the violence.

The bottom-line is that the choice of justice, healing and reconciliation mechanisms for Kenya must be seen to be credible, independent and should meet international standards. If the cases are carried out in an environment where the domestic courts have capacity, resources and integrity and where the TJRC process is independent and able to promote reconciliation as part of the broader criminal justice process, this domestic process would be an important step towards achieving peace, justice and accountability in a country desperate for all three. If not, then hopefully the ICC can provide the international justice safety net envisaged by the drafters and supporters of the Rome Statute, including Kenya.