PROSECUTION OF GRAVE VIOLATIONS OF HUMAN RIGHTS IN RADIANCE OF CHALLENGES OF REGIONAL, NATIONAL COURTS AND THE INTERNATIONAL CRIMINAL COURT:

THE KENYA QUANDARY.

ABSTRACT ON A PAPER TO BE SUBMMITED DURING THE MOI UNIVERSITY 8TH ANNUAL CONFERENCE.

BY: MUHAVI MUGAMBI PETER.

ABSTRACT: If to be feelingly alive to the sufferings of my fellow-creatures is to be a fanatic, I am one of the most incurable fanatics ever permitted to be at large.1 The above lines are among the most popular and widely quoted lines of history. As well as the beauty of language, they have a haunting relevance for contemporary national and international legal global systems. The Republic of Kenyas legal system has gradually evolved since independence in 1963. Rapid change in legal global dynamics has been an empirical factor in hastening the adaptations of new dimensions. One of it is the promulgation of the new Constitution which has changed the legal field completely, of relevance is the introduction of the supremacy clause sub articles (5) and (6) of 2.2 While baring in mind the theme, this paper has focused on the challenges that face judicial avenues which exist in response to victims of mass violations of human rights, with few studies examining the relationship between regional, national and international judicial tribunals in their roles of responding to these massive violations of human rights. In situations where states which are convalescing from an armed conflict typified by these violations, challenges to successfully tackle the legal aspects of the disorder to attain tranquility and evenhandedness are many. This is why the Community of States has over the past few decades played a significant role in coming up with ways and means of bringing reconciliation and justice to victims of gross
1

Private Papers of William Wilberforce (1897). William Wilberforce was an MP and a vanguard in the abolition of The general rules of international law and any treaty or convention ratified by Kenya shall form part of law of

the slave trade in the British Empire.

2

Kenya.

violations of human rights, including crimes such as genocide, crimes against humanity and war crimes in war tone zones in the world. The atrocities committed in the Former Yugoslavia 3 and in Rwanda4 attracted international outcry and revulsion, which as a consequence provoked the Community of States to reevaluate the urgency to end the tradition of impunity. 5 National Courts,6 ad hoc international tribunals, 7 hybrid courts,8 truth and reconciliation mechanisms 9, Regional Courts10 and the International Criminal Court (ICC)11, are among the machinery being used to hold individuals and others alike criminally responsible for international crimes, with varying degree of success and lasting consequences. Even though the United Nations (UN) has always played an essential role in responding to grave and mass violations of human rights in such occurrences, the justice gap in Kenya has historically been underscored and is yet to be determined, basing on the outcome of the current
3

The most widely accepted estimate of war deaths in the former Yugoslavia exceeds 200,000 civilians and soldiers.

Cary, P. War Casualties: Bosnia by the numbers US. News and World Report (1995) at 33, 53.
4

The Result of the genocide in Rwanda was the killing of an estimated 800,000 (primarily Tutsi), See Mugwanya G

Introduction to the International Criminal Tribunal for Rwanda (ICTR) in Heyns, CH (ed) 1 Human Rights Law in Africa (2004) Leiden : Nijhoff 60.
5

These events consolidated a determination to revive the legacy of Nuremberg and to end the culture of impunity

that has prevailed since and beyond international and domestic trials of the perpetrators of crimes against humanity and war crimes during the Second World War. See Dugard.J (1998) bridging the gap between human rights and humanitarian law: The Punishment of Offenders IRRC 445-453.
6

In October 1998, the UK arrested former President Augusto Pinochet on a Spanish warrant charging the former

dictator with human rights crimes committed in Chile. Also, in Chad victims were emboldened by international efforts to indict former dictator Hissene Habre, leading them to bring cases before their national court against former Habre associates.
7 8 9

The ICTY in 1993 and the ICTR in 1994. East Timor, Kosovo and Sierra Leone. South Africa, Sierra Leone, Cambodia, East Timor, Bosnia and Kenya. See IACHR, ECOWAS, SADCC Tribunal, EACJ, ACHPR. DRC (Ituri) and UG (North Uganda); see The ICC: How NGOs can contribute to the prosecution of war

10 11

criminals Human Rights Watch September 2004 1; see also www.icc-cpi.int/Menus/ICC.

ICC proceedings against four Kenyans, on charges of crimes against humanity over the 2007/2008 post-election violence. 12 Properly tackled, the paper has been divided into six major parts. The first part will lay down the substance of the work. Part two will discuss the state obligations in international law to prosecute gross violation of human rights and give a summary of the human rights violations situation during the post election violence in Kenya. Part three will discuss the available national mechanisms for accountability in Kenya, before and after the promulgation of the new Constitution. It will discuss if national courts and TJRC are able to deal with these atrocities committed in Kenya. Part four will scrutinize the extent to which the ICC could deal with the Kenya case and challenges. Part five will discuss the development towards accountability in Kenya and the way forward. Part six will draw a conclusion on how to break the sequence of impunity in Kenya. Through the above, the ultimate target of this paper is to address the following questions: first, States are obliged by international law to prosecute perpetrators of grave violations of human rights. To what extent are the Kenya national courts capable to address these staid human rights violations? Secondly, the ICC may be an answer to crimes committed in Kenya, but what will happen to crimes committed between 1963 to July 2002, (beyond the scope of the ICC; the road so far for TJRC)? Thirdly, how possible is it to establish a mechanism to end impunity for crimes committed in Kenya since 1963?

12

See www.icc-cpi.int/Menus/ICC/Situations/Situation+0109/.