Calls for Greater ICC Effort in Kenya Attorney general says state is committed to prosecuting election violence cases,

but needs help. By Nzau Musau - International Justice - ICC ACR Issue 332, 22 Nov 12 Kenyas attorney general is calling on the International Criminal Court in The Hag ue to do more to help his countrys own judiciary prosecute individuals accused of responsibility for mass violence five years ago. The Hague court is bringing four of the alleged top perpetrators to trial, but i nvestigations into thousands of lower-level suspects in Kenya itself have stalle d, in large part because powerful political forces oppose this. Speaking at a conference on international justice held in Nuremberg on October 5 and 6, Attorney General Githu Muigai, said the International Criminal Court, IC C, should do more to support efforts to develop Kenyan judicial institutions, in the wake of a new constitution passed in August 2010. Following a disputed presidential election in December 2007, almost two months o f bloodshed left 1,100 civilians dead. Supporters of each of the opposing politi cal forces targeted communities they associated with the other, so that the stru ggle descended into ethnic warfare. When Kenyas parliament failed to initiate investigations into the violence, the I CC prosecutor stepped in. Kenya thus became the first country where the ICC init iated its own investigation rather than waiting for cases to be referred to it e ither by the state itself, or by the United Nations Security Council. The court has charged four individuals Deputy Prime Minister Uhuru Kenyatta, for mer cabinet secretary Francis Muthaura, member of parliament William Ruto and jo urnalist Joshua Arap Sang with crimes against humanity, accusing them of orchest rating the violence. In his speech, Muigai acknowledged that Kenya had missed an opportunity to build on the ICC process by failing to establish its own national tribunal to deal wi th other alleged perpetrators. He said the Kenyan judiciary always intended to pursue those responsible for the violence, but parliament got in its way. Legislators twice rejected plans to se t up a special tribunal which would handle international crimes, as opposed to t he offences that ordinary courts deal with. Sustained political opposition to the proposed tribunal has meant that no one ha s been charged in a Kenyan court with international crimes committed after the 2 007 election. Despite the ICC investigations, the suspects retained their positions until char ges were confirmed. Kenyatta remains deputy prime minister, and he and his polit ical rival Ruto are both campaigning for a presidential election due in March 20 13. The government has formally continued to cooperate with the ICC, but has also ac ted to obstruct the process. In April, a justice minister who supported the ICC process was replaced by a new one who said he did not plan to handle any matters relating to the Hague court. And apparently at Kenyas instigation, the East Afri can Legislative Assembly suggested the same month that the four cases should be

tried in Tanzania, not at the ICC. Muigai diplomatically described the constraints on the justice process as the pol itics of reconstruction. The Kenyan case is special and unique in more than one way, Muigai said at the con ference. ICCS ROLE IN DEVELOPING LOCAL COURTS The ICCs Office of the Prosecutor, OTP, says it is essential for the court to enc ourage genuine national proceedings that complement its own judicial process. Observers of international justice, including the New York-based advocacy group Human Rights Watch, describe this as division of labour where the ICC would pros ecute those held to bear the greatest responsibility for a given set of crimes, and the justice system of the state concerned would tackle cases of mid- and low er-level perpetrators. According to Human Rights Watch, if this principle, known as positive complementa rity, works as it should, states like Kenya would develop both the willpower and the judicial capacity to prosecute all international crimes by themselves. In 2010, Kenya passed national legislation, drawing on the ICCs founding Rome Sta tute, that amounts to a legal toolbox for the local prosecution of international crimes, for example war crimes and crimes against humanity. However, the curren t interpretation is that the legislation cannot apply retrospectively, and there fore does not cover the violence of 2007-08. A committee led by Kenyan chief justice Willy Mutunga is due to publish a report on the prospects for establishing a special division of the high court which wo uld try any future cases of war crimes or crimes against humanity. There are analogies with the situation in neighbouring Uganda, which has develop ed its own judicial capacity in parallel with ICC investigations, in this case i nto the rebel Lords Resistance Army. Since the ICC issued indictments against reb el leaders in 2005, Uganda has incorporated the Rome Statute into its own legisl ation and set up a war crimes division at its high court. But even without a dedicated tribunal, Kenyan courts could still prosecute some of the thousands of cases on police files. The problem is, observers say, is tha t they lack the skills and know-how to do so. Aside from political obstructionism, Muigai was optimistic that individuals coul d be prosecuted for crimes that occurred in 2007-08, and called on the ICC to he lp bring local courts up to the required standard. As evidence of Kenyas willingness to move on prosecutions, Muigai pointed to the thousands of criminal cases still being assessed by a specially-appointed taskfo rce. This is why I emphasise the necessity [for the ICC] to promote local capacity, he said. It was never intended that the [ICC] will have primary jurisdiction over ma tters that come before it. Echoing Muigai, Neela Ghoshal of Human Rights Watch also called on the ICC to pr ovide more support, in the shape of expertise. The Kenyan state could benefit from learning more from ICC investigators and pros ecutors on how international crimes are investigated and prosecuted, Ghoshal said

, noting that of the few suspects who have been prosecuted in local courts, almo st all of those convicted have been affiliated with Kenyas Orange Democratic Move ment party, ODM. ODM is the coalition partner of President Mwai Kibakis Party of National Unity, P NU. The coalition was hammered together to end the fighting in 2008; before that , supporters of the two parties fought each other as the protagonists in the blo odshed. Personnel within the judges, would benefit . Its important for t regard to political Kenyan justice sector, ranging from police investigators to from further training on international crimes, Ghoshal said Kenya to observe how courts can handle cases neutrally, withou affiliation.

KENYAS DIFFICULT RELATIONS WITH THE ICC Besides lack of political will, Muigai said other factors had also held back the development of the judicial sector and with it the prospect of trying cases loc ally. One lly ion cal of these factors was Kenyas troubled relationship with the ICC, and specifica the OTPs handling of cases. Muigai believes the ICC treated Kenya with suspic even though the state was doing its best to deliver justice in trying politi circumstances.

The problem we have had, especially during [former prosecutor Luis Moreno] Ocampos time, is that it was not possible to sustain a professional dialogue with the c ourt. I found some remarks attributed to [Ocampo] downright discourteous, patron ising and disrespectful, Muigai said. He was referring specifically to a comment by Ocampo at the start of the ICC investigation in 2009 that he would make a worl d example of Kenya. Muigai told participants at the Nuremberg conference that he was optimistic that the relationship would get better now that a new prosecutor, Fatou Bensouda, wa s in place. Bensouda succeeded Ocampo in June. We have hope and a good working relationship with Madam Prosecutor. I would wi sh to see her do the repair work from where her predecessor left, Muigai said. When IWPR contacted Ocampo about the attorney generals view of his attitude, he s aid he had respected the Kenyan government from the very start. As the prosecutor, I worked to do justice in Kenya, he said. Justice includes respe ct for the victims, for the law, and for those allegedly responsible. From the b eginning I respected the Kenyan government. GROUNDS FOR OPTIMISM? Despite the barriers to delivering justice in Kenya, some analysts believe ICC i ntervention has already had a positive impact and established a strong foundatio n for trying international crimes locally. Ghoshal says that in a highly politicised environment, key institutions and Keny ans generally have learned a lot from the ICC, particularly about judicial indep endence. During the confirmation of charges hearings [in September and October 2011], Keny ans observed impartiality at work, Ghoshal said. The judges clearly had no politic al bias for or against any particular suspect.

Other commentators say that despite the failure to hold local trials, Kenyans ar e talking about the ICC and the principles behind it. When no one seems concerned or interested in prosecuting international crimes in Kenya, then perhaps one can say that complementarity might have failed, Anna Kotz eva of the Netherlands-based Peace and Justice Initiative said. I do not think th at Kenya is near that point. Kotzeva said progress on delivering justice need not only be judged by the cases stemming from the 2007-08 violence; another measure would be Kenyas ability to c reate deterrents to future international crimes, and prosecute perpetrators if t hey occurred. One important lesson that Kenya can take away from the ICC experience is that no one is beyond the reach of the law, Kotzeva said, adding that the four suspects f acing trial in The Hague will be remembered in Kenya for many years to come. Kenyans in positions of power and influence who participate in the perpetration o f international crimes can no longer expect to evade responsibility for their ac tions, she added. Nzau Musau is an IWPR-trained reporter in Nairobi.