Law Society of Kenya wants formation of International Crimes Division sped up

PHOTO | FILE Law Society of Kenya chairman Eric Mutua.  NATION MEDIA GROUP

In Summary

• Kenyan authorities had promised to establish the ICD by the end of the year to try the offenders of 2007/08 post election violence
• The cases to be handled by ICD were to be investigated afresh to meet the threshold for international crimes

By LUCAS BARASA
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Lawyers want the government to speed up the formation of the International Crimes Division of the High Court to handle transnational offences.

Law Society of Kenya chairman Eric Mutua said the formation of the division is long overdue “after being talked about for the last two years.”

“We call on the sub-committee formed to work on the establishment of the tribunal to finalise the preparation,” Mr Mutua told the Nation in an interview.

The chairman said the ICD formation is crucial as it will help try middle level perpetrators of the 20077/8 post election violence.

“A lot of crime is also being committed at transnational level. We also need to build capacity in terms of prosecution to try the cases,” Mr Mutua said.

He regretted that the sub-committee formed to establish the division, where LSK is also represented, had not made “a lot of progress.”

The committee, Mr Mutua said, is grappling with some issues including having an independent prosecutor and training of judges to head the division.

“As LSK we support the division not necessarily because of the post election violence perpetrators but also dealing with cross border and other international crimes. There is also issue of piracy as a judge had ruled that Kenya has no jurisdiction to try the suspected pirates but was overruled by Court of Appeal,” Mr Mutua said.

Mr Mutua however regretted that the recent stalemate at the Judiciary following the suspension of six Judicial Service Commissioners could delay the formation of ICD. (READ: Special court to try poll chaos suspects may delay)

“Although JSC is operating there’s a cloud over it as the necessary legitimacy for them to deal with issues can be questioned,” Mr Mutua said.

President Uhuru Kenyatta’s suspension of six JSC commissioners was overturned in court. (READ: Blow to President Kenyatta as court outlaws Aaron Ringera team)

WAS TO COMPLEMENT ICC

Kenyan authorities had promised to establish the ICD by the end of the year to try the offenders of 2007/08 post-election violence, even as cases against President Uhuru Kenyatta, his deputy William Ruto and radio presenter Joshua Arap Sang continue at the International Criminal Court in The Hague.

The local prosecution to compliment the ICC was to target thousands of people suspected to have committed offences during the country’s darkest moments, including those whose names will be mentioned in the ICC cases.

Attorney General Githu Muigai and JSC Commissioner Samuel Kobia had said on the sidelines of the Assemblies of State Parties meeting in The Hague last month that efforts were in place to establish ICD to handle future crime cases.

Dr Kobia said ICC should support Kenya in building the national rule of law by creating ICD, “because this is what will determine its success in Kenya”.

He added that Kenya is fully prepared to launch the ICD by January 2014. “We have visited Uganda, Rwanda, Cambodia, Hague and we will go to Bosnia in January to study previous experiences from their local divisions that we can apply in Kenya.”

“Setting up an ICD will not interfere with the current Kenyan cases at the ICC and Mr Muigai has stated that this should be well understood,” said Dr Kobia.

NOT READY

Attorney General for the Republic of Botswana Athalia Molokomme however felt that Kenya was not ready enough to set up a local international criminal division.

“Generally in Africa, I have the notion that our legal and institutional structures are not well developed to meet the set standards by the international court, Kenya is not an exception,” she said, citing the example of the African Union (AU) court that was to set up criminal measures, but has taken a long time to commence operations.

“We have few structures that do not back up our operations and all state parties need to engage in constructive talks that can reward our ventures in setting up local international crime divisions,” Ms Molokomme said.

Executive director of International Centre for Transitional Justice (ICTJ) in Kenya, Njonjo Mue, however emphatically refuted Mr Muigai’s sentiments on setting up a local ICD.

“How prepared are we to set up a local ICD when our witness protection unit is not vibrant and its budget is insufficient and has currently been reduced by 15 per cent? What magic will we need as Kenyan leaders to generate the will to be fair in the ICD, when we have initially failed several times?” he posed.

Mr Mue said that the ICD is being set up with the leaders’ minds geared towards the possibility of bringing the three Kenyan cases at the ICC back home.

He said that the civil society is not opposing the move to set up the division but urged Kenyans and leaders involved to be careful not to set up a ‘white elephant’.

“By this, I mean a division that will be hostile to pursuing justice to victims of post-election violence,” Mr Mue said.

German director of International Law at the Federal Foreign Office Dr Pascal Hector urged Kenyan leaders to work together with other African countries to make the judicial system better so as to promote complementarity.

Dr Hector, whose office is funding the ICD said the division is crucial because it will help deal with middle level perpetrators and other international crimes.

“Generally, I have spotted numerous deficits in enforcing the law in the region, setting up a local division alone is not enough, it needs to be supported by putting into practice the set laws,” Dr Hector said.

Prof Alex Whiting of Harvard Law School said that Kenya needs to have a great political will, commitment and togetherness so as to set up a local tribunal.

Once ICD is established, Kenya will be seen to have enhanced its cooperation with the ICC, he said.

FRESH INVESTIGATIONS

Kenyan authorities had earlier promised to establish ICD by the end of the year.

The cases to be handled by ICD were to be investigated afresh to meet the threshold for international crimes.

A committee formed to oversee the ICD was in the process of recruiting a registrar as the first step in making the division operational before President Kenyatta suspended six JSC commissioners.

Dr Kobia, one of the commissioners that had been suspended, chairs the committee on ICD.

Dr Kobia had said consultations with most agencies and civil society for establishment of ICD were complete.

He added that the Director of Public Prosecutions, Keriako Tobiko, had indicated he had cases that could be tried locally. According to the DPP, some 5,300 cases were under investigation following the post-election violence. A review by a special task force reduced the cases to 4,500, which are still open for further investigations.

The cases could not be prosecuted because either there were no individual offenders mentioned, witnesses were not available, or crucial evidence was missing.

The plan to prosecute suspected offenders offers hope of justice for victims of the post-election violence. Since the violence nearly six years ago, Kenya has been under pressure from the international community to establish a local tribunal with international membership to try offenders whose cases were not taken over by the ICC.

The ICD could also handle crimes such as terrorism, money laundering, and drug trafficking.

The concept of ICD was launched by Chief Justice Dr Willy Mutunga in December 2012, on the basis of Chapter 8 of the International Crimes Act, 2008, which domesticated the Rome Statute.

It is expected to adopt similar procedures as the ICC. But Kenyan MPs have passed a motion seeking a Bill that will see the country initiate the process of withdrawing from the Rome Statute, a thing that could deny ICD powers to prosecute PEV cases.