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Kenya's Dangerous Dance with Impunity

JURIST Guest Columnist Charles Jalloh of the University of Pittsburgh School of Law says that while having the International Criminal Court take up cases arising out of the violence that followed Kenya's 2007 elections could be convenient for local politicians seeking to evade responsibility for stoking ethnic hatreds and fomenting violence for personal gain, international prosecutions may have limited impact in healing the raw wounds of the currently divided nation....

Following disputed multi-party elections held on 27 December 2007, shocking and unprecedented violence gripped the East African nation of Kenya. It is estimated that about 1,200 innocent people were killed in the course of three months. Of those, the majority lost their lives because of their ethnicity, political affiliation, or both. Since then, Kenyans have been demanding that the perpetrators of those crimes be brought to justice.

In principle, the country has three choices to prosecute post-election violence. First and most obviously, it could use its domestic courts to do so. National courts are usually the best forum in which to prosecute crimes. That is why they are the default option. Among other things, they are the locus criminis, the place where the crimes occurred, and where suspects, victims, their relatives, and most witnesses reside. State prosecutors can also normally rely on the law enforcement machinery of the domestic criminal justice system (such as the police) to swiftly conduct investigations, draw up charges, execute arrest warrants, and detain suspects.

Unfortunately in Kenya’s situation, the Commission of Inquiry into Post Election Violence (“Waki Commission”), which was established in order to do a post-mortem on the election-related crimes and to recommend a way forward, ruled out this option. Why? Because in the Waki Commission's view, the local justice system was in such a “sorry state” that the public rightly lacked confidence in its ability to dispense credible justice.

In addition, the country’s legal system was plagued by major institutional deficiencies. These had a tendency to encourage rather than deter entrepreneurs of violence because the chances were high they would get off scot-free. On top of that was a lack of political will at the high levels to genuinely address such crimes, as well as fears about prosecuting powerful people among the lower ranks of the police. In such an environment, impunity tends to thrive and the rule of law starts to wither.

Thus, the Waki Commission recommended that Kenya choose the second option available to it, that is: to establish a hybrid Special Tribunal for Kenya (“STK”). The STK, a court of mixed subject matter jurisdiction and staff composition, would investigate and prosecute those “bearing greatest responsibility” for the killings and other atrocities related to the 2007 general elections.

Special courts are in vogue in the international community. They are a better option wherever domestic courts cannot be trusted to dispense justice, whether because of a lack of capacity or a lack in the necessary juridical space to function independently. A key advantage of these types of tribunals, among others, is that they can be grafted onto the existing justice system. This is what happened in Bosnia, East Timor, and Cambodia with United Nations assistance. Alternately, they could be insulated from the travails of domestic legal systems by creating a separate institution altogether. The best examples of this are the Special Court for Sierra Leone, which has jurisdiction over national and international crimes, and the Special Tribunal for Lebanon, which only has jurisdiction over common Lebanese crimes.

Regrettably, Kenya appears to have given up the various advantages of setting up a hybrid court. On 30 July 2009, President Mwai Kibaki and his coalition government rejected the STK idea despite having endorsed it back in December 2008. Instead, the Cabinet decided the country would prioritize “national healing and reconciliation.” Toward this end, they would undertake “accelerated” and extensive reforms in the judiciary, police, and investigative arms of government to try “perpetrators of post-election violence locally” (that is, within the regular national courts).

Talks of institutional reform were obvious attempts to turn the fail grade that the Waki Commission had given the domestic system into a passing mark. In any case, the government would now deploy local trials alongside the recently established Truth, Justice, and Reconciliation Commission (“TJRC”). It appears that the TJRC is more popular among the powers that be because it emphasizes forgiveness and reconciliation, not criminal prosecutions. It can also grant amnesties for some crimes (albeit conditional ones) which is why many Kenyans question whether, in reality, the government plans to set "justice" aside in order to put in place a process devoted exclusively to truth and reconciliation.

In theory, as United States Secretary of State Hillary Clinton observed during her recent visit to Nairobi, the ideal situation would be for domestic prosecutors, judges, and law enforcement officials to “step up to their responsibilities” and remove the impunity question. Indeed, Kenya, like other countries, should aspire to render justice through its regular courts.

In practice, however, this poses a huge problem because some Kenyan leaders who have apparently been implicated by the Waki Commission are unlikely to sit idly by while tribunals with long arms are created to reach them and their cronies. Those politicians have reportedly been fighting a rear guard action to kill the STK idea since last year. They seem to have succeeded. In the meantime, the government now promises to fix the local justice system to prosecute post-election violence.

What the government is not telling Kenyans is that it takes significant resources and time to implement the extensive reforms that would be required to credibly prosecute perpetrators. This is especially so when we consider the Waki Commission’s damning indictment of the domestic legal system. Not only did it point a finger at the judiciary, but it also questioned the effectiveness of key players in the justice process, including the Attorney-General. The latter has the power to block prosecutions, and in the past has not hesitated to use it, especially those brought against prominent individuals.

The good news is that the skeptical commissioners left Kenyans a back-up plan in case the politicians fail, for whatever reason, to establish the STK. It therefore gave custody of evidence and an envelope containing a list of alleged suspects of post-election violence to Kofi Annan. Annan, the former UN Secretary-General, chairs the Panel of Eminent African Personalities that the African Union dispatched in 2008 to help the rival political camps reach political settlements. He was to hand over the material to Prosecutor Luis Moreno-Ocampo of the International Criminal Court (ICC). Essentially, the Waki Commission tried to shame the government into dealing with impunity domestically through a locally driven but internationalized STK process- or, failing that, for it to refer itself to the ICC for investigations and possible prosecutions.

In early July 2009, the Kenyan authorities sent a high level delegation to meet with the ICC prosecutor in The Hague. This suggested that the government is indeed serious about dealing with the accountability question. On the other hand, by choosing to scuttle the STK recommendation just a few weeks later, the politicians appear to be playing games- not only regarding impunity, but regarding the future stability of the country as well. In the end, time will tell what their motives were. But if this turns out to be political maneuvering, as evidenced by the experiences of other African countries, Kenyan leaders would be engaging in a dangerous dance with impunity.

Annan, by this point one of Africa’s leading post-conflict paramedics, has recently transmitted the evidence and list of suspects to the ICC Prosecutor. The question now is whether the proposed domestic prosecutions would square with the country’s obligations under the Rome Statute. Part of the answer can be found in Article 17(1).

Under that provision, a case is inadmissible before the ICC if it “is being investigated or prosecuted by a State which has jurisdiction over it.” However, where the concerned state proves to be either “unwilling” or “unable genuinely to carry out the investigation or prosecution,” the presumption of complementarity will be reversed, thereby rendering the case admissible in the ICC. Unwillingness exists where national authorities undertake sham investigations to shield suspects from prosecution, where there is unjustified delay indicating that there is in fact no intention to prosecute, or where proceedings are not conducted impartially.

The Waki Commission found that, historically, impunity has reigned supreme for election related violence in Kenya. So, in a way, one could quickly consign the country to the “unwilling” category and, on that basis, argue for ICC involvement. Indeed, what is known about the post-election violence raises serious concerns about whether there is a genuine commitment to investigate and prosecute post-election crimes given the alleged links between perpetrators, politicians, and other higher level persons associated with the current government.

There are also serious problems affecting justice delivery in Kenya. The weakest link is apparently the investigative arm of the police. Yet the country relies heavily on police prosecutors who apparently conduct the majority of all cases in Kenya due to the limited capacity of the Attorney-General’s office. Because of heavy police involvement in the violence, this raises serious questions about fundamental principles of natural justice. But the threshold for inability under the Rome Statute appears so high that it would only be met where there is a “total” or “substantial collapse” of the national legal system. Thus, for the “unable” prong of the Article 17(1) test, a strong argument can be made that Kenyans have some ability to prosecute the crimes locally. The system may be tattered, but is not yet a write off from an Article 17 point of view.

Nevertheless, the politicians probably figured that they are better off opting for “self-referral” because, under Article 17(1)(b), the ICC would not possess jurisdiction if Kenya investigates and decides not to prosecute. This would be so unless there is evidence of bad faith tending to show unwillingness or inability to prosecute. It is also hard for the Prosecutor to exercise jurisdiction if someone is prosecuted within a Kenyan court, and say because of subtle pressure on a judge, is exonerated in a local trial. Double jeopardy rules would apply to the ICC proceedings as per Article 17(1)(c).

But the clincher behind the latest insistence on domestic prosecutions may lay elsewhere. They probably know that the ICC Prosecutor must analyze the “seriousness” of information received about alleged crimes under Article 15(2) of the Rome Statute. Ocampo announced in February 2008 that he is undertaking preliminary investigations into the Kenyan situation. However, to invoke his jurisdiction he must find that one or more defined ICC crimes in Article 5 (i.e. genocide, crimes against humanity or war crimes) were perpetrated.

It seems to be settled that ethnicity was a key factor in the post-election violence. However, the Waki Commission did not discover any evidence of genocidal intent. At best, there was an internal disturbance after the elections so war crimes are also not in issue. Nevertheless, according to the commissioners, the evidence of attacks against civilians may amount to “crimes against humanity.” Even here, there are serious difficulties because it is uncertain that the post-election violence in Kenya would necessarily match the definition in Article 7 of the Rome Statute.

First, on the positive side crimes against humanity no longer require a nexus to an armed conflict to be punishable. On that score, Kenya would pass the first hurdle.

Second, Article 7(1) prohibits certain acts that were apparently perpetrated in Kenya, including: murder, deportation or forcible population transfers, unlawful imprisonment, torture, sexual violence such as rape or other acts of comparable gravity, persecution against identifiable political or ethnic groups, and enforced disappearance. In addition, specific features of the post-election violence that caused victims great suffering or serious bodily or mental injury, such as the forced circumcision of Luo men, could conceivably fall into the residual category of “other inhumane acts” in the same way that forced marriage, which was a salient feature of the Sierra Leonean conflict, has since been jurisprudentially determined to constitute an inhumane act.

On the more challenging side, in order to show that crimes against humanity were committed in Kenya, the Rome Statute requires proof of the “contextual elements” that would transform an ordinary offense such as murder into an international crime. This requires that the prohibited acts, in the language of Article 7(1), be found to be “part of a widespread or systematic attack direct against any civilian population.” The first part of this test is disjunctive so only proof of one of the two elements is required. The second half requires an “attack,” which is generally taken to mean “multiple“ (as opposed to random or isolated) acts against a civilian population. It is certainly arguable that there were widespread attacks against Kenyans after the elections. The more difficult argument to sustain is that those attacks were carried out deliberately as a result of some state or organizational policy. This is especially so considering the finding that some of the post-election violence was spontaneous rather than organized.

Ultimately, the answers to these legal questions will be fact driven. It is therefore hard to allege that crimes against humanity were committed in Kenya without detailed evidence. In fact, even the Waki Commission, which spent months studying the post-election crisis, hesitated to reach a definitive conclusion on this point. Much of the evidence gathered was apparently insufficient to prove the suspects’ guilt in a regular criminal trial, and as such was meant to serve as a springboard for further investigations. Significantly, the report admitted that the evidence “may even fall short of the proof required” for crimes against humanity.

The possibility that only one international crime may have been committed in Kenya will be weighed by the ICC prosecutor alongside the numbers of victims, amongst other factors, in deciding whether to pursue the Kenyan situation. Furthermore, while tragic and unprecedented, he is free to conclude that the post-election violence does not meet the gravity threshold when considered against other situations from around the world. In other words, under Article 17(1)(d), he may find that there is insufficient gravity to warrant further investigations or prosecutions.

Where does this analysis leave Kenya? If the desire is to mete out credible justice for the post-election crimes, Kenya’s best option remains the STK, as the Waki Commission argued back in October 2008. But since agreement on a hybrid court seems to be elusive, or is caught up in survivor politics, Kenyan leaders have opted to prosecute cases domestically. This clearly gives them more control and influence over the process. Whether local prosecutions would ultimately pass ICC muster would depend upon how they are carried out. That in turn depends on how speedily reforms can be implemented in a judicial system that apparently enjoys little confidence amongst ordinary Kenyans.

The final option is for an ICC self-referral. Contrary to popular commentary within Kenya, the so-called “Hague option” is not, and should not be seen as, a magic bullet for the country’s impunity problems. For one thing, as shown here, there is no guarantee that the Prosecutor would invoke his jurisdiction to pursue the crimes there. Even if he does so for his own reasons, say to prove the point that some African states still support instead of oppose the ICC, he can only prosecute those “most responsible” for the violence. An “impunity gap” would result except if Kenyan authorities prosecute middle and lower ranking perpetrators, while sending the “big fish” to The Hague.

In any case, distant trials at the ICC would offer little comfort for those to whom it matters the most: the Kenyan victims of the violence. Why? Because they would effectively be denied the opportunity to watch their tormentors face justice. In turn, while this could be a good way out for the politicians seeking to evade responsibility for stoking ethnic hatreds and fomenting post-election violence for personal gain, international prosecutions may ultimately have limited impact in healing the raw wounds of the currently divided nation.

Charles C. Jalloh is an assistant professor at the University of Pittsburgh School of Law. He previously worked at the Special Court for Sierra Leone and the UN International Criminal Tribunal for Rwanda.

August 18, 2009

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