Complementarity in Kenya: An analysis of the Domestic Framework for International Crimes Prosecution

This Chapter sets out to examine the legal and institutional framework for prosecution of international crimes in Kenya, focusing on whether it provides a credible basis for accountability at the domestic level and corresponds with international standards relating to such accountability processes, including witness protection and victims’ rights.In the context of the International Criminal Court’s (ICC) investigation into the 2007/8 post- election violence (PEV), there has been sustained debate about creating a framework for prosecuting international crimes in Kenyan courts. Citing the ICC’s complementarity principle, Kenyan leaders have sought to frame this as an alternative to international prosecution of PEV crimes, whereas civil society groups, citing the same principle, have tended to advocate that a domestic accountability process should only supplement international justice.1Kenya ratified the Rome Statute on 15 March 2005 and it entered into force on 1 June 2005. Kenya domesticated the Statute by adopting the International Crimes Act (ICA), which came into force on 1 January 2009.2 The ICA provides the foundation for giving effect to the Rome Statute within Kenyan law, including the principle of complementarity, as it gives Kenyan courts jurisdiction to prosecute these crimes; provides the foundation for Kenyan authorities to provide the ICC with requested information, transfer to the Court persons against whom the ICC has issued arrest warrants and otherwise cooperate with the ICC; and lays down provisions permitting the ICC to operate within the country.Following talks concerning the establishment of a Special Tribunal or a Special Division of the Kenyan High Court to prosecute international crimes committed in the context of the 2007/8 PEV, in January 2015 the Kenyan Judiciary confirmed that it will establish an International and Organized Crimes Division (IOCD) within the High Court. The Judiciary has stated that the IOCD is currently being developed in partnership with stakeholders from other state agencies and international partners under the supervision of a Judicial Service Commission(JSC) committee. The IOCD is intended to have jurisdiction over international crimes as defined by the Rome Statute, as well as transnational crimes such as organized crime, piracy, terrorism, wildlife crimes, cybercrime, human trafficking, money-laundering and counterfeiting (Wayamo Foundation 2014).The decision to establish a specialized division of the Kenyan High Court to prosecute international and transnational crimes has been lauded by some as an important step towards promoting accountability and has received substantial international support (Ambach 2015). However, the IOCD is unlikely to prosecute PEV-related crimes, and there are more broadly significant challenges giving effect to the principle of complementarity in Kenya, if understood to involve a framework whereby “the Court and States should work in unison – by complementing each other – in reaching the Statute's overall goal [...] to fight against impunity” for Rome Statute crimes.3Notable challenges include the lack of investigatory and prosecutorial capacity; challenges relating to the protection of witnesses and victims; and, most profoundly, lack of political will to prosecute the perpetrators of international crimes, particularly those committed in the context of the PEV. However, the debate over creating a domestic framework for prosecuting Rome Statute crimes cannot be separated from developments relating to the Kenyan ICC cases, including steps taken by the Government to end or undermine the ICC process. As all of the PEV-related ICC cases have now collapsed,4 supporters have lost leverage for promoting domestic PEV prosecutions.