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CHALLENGES POSED BY THE MAIN JUDICIAL OPTIONS AVAILABLE TO KENYA FOR TRANSITIONAL JUSTICE
2007/2008 post-election violence (PEV) in Kenya and the measures that were taken thereafter to restore peace and stability to the country brought the concept of transitional justice closer home to a lot of Kenyans.
Prior to that, the average Kenyan was not entirely familiar with this scope of justice which aims at redressing systematic or widespread violations of human rights in order to promote possibilities for peace, reconciliation and democracy.
Today, Kenyans are demanding for accountability and reform within the leadership using some of the initiatives that are taken to bring about transitional justice. These include criminal prosecutions, for instance by the local courts or the international criminal court (ICC), truth commissions, security system reforms and reparation programs.
There is consensus among the general public that there is need for those who were responsible for perpetrating the PEV to be held accountable so as to curb the culture of impunity which has taken root in our leadership.
There have been calls for the prosecution of those who are considered as having been responsible for the PEV. The debate has been centred on what forum the suspects of the PEV should to be tried in- is it the ICC or the local courts? The latter has been quickly dismissed as wishful thinking because of a lack of confidence in the judiciary. The judiciary is criticised for lacking independence in relation to the executive. It is feared that the executive is likely to interfere should the suspects be tried in our local courts. This is not only because some of the suspects are influential members of the executive, but it also results from the powers that the executive has which may interfere in the prosecutorial process.
For instance the Director of Public Prosecutions (DPP) who forms part of the executive and is mandated to exercise the State powers of prosecution under section 157 (6) of the Constitution, has the power under section 157 (6) (b) and (c) of the Constitution to take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, including those that would be instituted against the suspects of the PEV, and to discontinue at any stage before judgment is delivered (but with the permission of the court) any criminal proceedings that the DPP has instituted or taken over. It would therefore be possible for the DPP to take over the case of any of the PEV suspects and to discontinue it for whatever reasons the executive would furnish and the courts would permit at the time such as a lack of sufficient evidence.
Similarly, the president, who is the chief executive, has powers under section 133 of the Constitution to grant free or conditional pardon to a person who has been convicted of an offence, including the PEV; to postpone the carrying out of a punishment either indefinitely or for a specified period of time; and to substitute for a less severe form of punishment the punishment imposed by the court on a person for an offence or to remit all or part of a punishment.
These presidential powers of mercy may be exercised in relation to any of the suspects tried for perpetrating the PEV in a way that may lead to the miscarriage of justice in favour of political gain. If, for instance, the president sees it fit to set aside the punishment of the suspects in favour of a public apology to the nation the matter would have to be concluded in that way.
Further, the decision of the court of first instance that would be trying the PEV suspects would be liable to an appeal to the High Court under section 165 (1) (e) of the Constitution where the court of first instance is a subordinate court, or to the Court of Appeal under section 164 (3) of the Constitution where the court of first instance has the same jurisdiction as the High Court, or to the Supreme Court under section 163 (3) (b) (ii) of the Constitution.
This would mean that the suspects of the PEV would have the legal right to appeal against a decision by the court which finds them guilty of the crimes that were committed during the 2007/2008 PEV. This would not only delay justice through a protracted appeal process, but would possibly lead to its miscarriage where for instance an appellate court makes a determination in favour of the perpetrators of the PEV based on a technicality such as a legal procedural issue. This would lead to a public outcry and a massive lack of confidence in the courts’ ability to deliver justice, and in an extreme case it may even re-ignite the level of tension and violence witnessed in 2007-2008.
Given the opportunities for interference that are presented by the current system, it is felt that the local courts cannot effectively try the PEV suspects, who are influential members of the current government. Even if a special trial chamber were to be established within our ordinary courts system it would still be liable to these challenges.
The International Criminal Court (ICC) on the other hand is mandated to hold persons accountable for the most serious crimes that are of concern to the international community such as genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC’s jurisdiction permits it only to cover crimes committed after 1 July 2002, when the Statute entered into force. Those vouching for the ICC option are therefore optimistic that the perpetrators of PEV can be brought to book through this option since Kenya is a signatory to the Rome statute which constitutes and gives jurisdiction to the ICC.
The main challenge that the ICC has been facing in the Kenyan situation is adducing evidence to prove that crimes under its mandate had been committed, and not just internal sporadic acts of violence. The ICC prosecutor, Moreno Ocampo, is in the process of gathering evidence on the Kenya PEV case, having been given the go- ahead by the Pre-trial chamber of the ICC. This has generated a lot of anxiety and yet also optimism for those who see the ICC as the best and only means for Kenya to hold the PEV suspects accountable.
Those vouching for the ICC option view it as a neutral forum where the PEV suspects can be tried independently from any executive or political influence that they would otherwise wield locally to interfere with the process should they been tried in our courts.
Even so, the ability of the ICC to prosecute the PEV suspects will depend a lot on the state’s cooperation in the process. The ICC has in the past charged powerful individuals in the different governments of the states which have been accused of committing international crimes, but have been unable to secure the arrest of such individuals and therefore their trial and punishment because of a lack of cooperation from the governments of these individuals.
For the ICC to exercise jurisdiction over an individual crimes under its mandate must have been committed. In the Kenyan case this has already been established at a preliminary level. Secondly, it must be shown that the concerned state is either unwilling or unable to try the responsible individuals locally. In the Kenyan case, the failure by parliament to set up the Special Tribunal within the stipulated time opened the way for the ICC to take over the case owing to the state’s unwillingness to do so.
However, even if the ICC commences the case against the Kenyan suspects, it would rely on the state to execute the warrants of arrest that it would issue against the individuals because the ICC does not have the machinery to do so on its own, and relies on the good will of the member states to carry out its mandate. If Kenya fails to cooperate with the ICC, the perpetrators of the 2007/2008 PEV will most likely not be brought to book.
Therefore, the success of any of the judicial options available to the country to bring about justice in relation to the PEV relies heavily on the state’s willingness to support it- we need to take responsibility as a nation for any process aimed at bringing about accountability for past injustices.
