Riddle of Kenya's International Crimes Act no one wants to touch

When Kenya enacted the International Crimes Act (ICA) in 2008, there was a high expectation that international crimes committed in Kenya or elsewhere would receive due attention in the country.

The crimes of that year’s post-election violence -- the mass displacement of hundreds of thousands, torturous acts such as rapes and stuffing of broken bottles in victim’s private parts, and mass murder -- had shaken the conscience of the Kenyan society.

A specialized court, the International Crimes Division (ICD) of the High Court was proposed, and was almost launched, until it was not.

In its zeal to frustrate the International Criminal Court (ICC) and shield Kenyan politicians -- ICA provides the legal framework for cooperation with ICC -- the State threw out the baby with the bath water.

Kenya has had an operational ICA for 16 years, during which it failed to cooperate with ICC in respect of Kenyan cases, but also in arresting former Sudan President Omar al Bashir.

An international symposium sponsored by the Wayamo Foundation held recently in Nairobi bemoaned the missed opportunities to operationalize ICD but also to deploy ICA as a buffer against humanity’s most heinous crimes.

The deployment of ICA in the Baby Pendo Case three months ago was hailed as a step in the right direction with Supreme Court Judge Isaac Lenaola saying it “provides an opportunity to set a precedent for future prosecution and the overall effectiveness of the International Crimes Act.”

But how is it that the ICD has failed to kick off after almost two decades, and how come within the same period no single international crime, until the Baby Pendo Case in May, has been tried in Kenyan courts?

Witnesses intimidation

The answers to the twin questions lay in the frank discussions that took place between local and international judges, prosecutors, jurists and scholars at Strathmore University’s Institute for Advanced Studies in International Criminal Justice.

“Prosecuting international crimes is no walk in the park. You have to remember that, in a way, you are challenging institutional capacities to deal with certain things. All systems may not be functioning as they should,” former Prosecutor, now Judge of the High Court, Alexander Muteti said.

Where state agencies are involved, as they invariably are, there are very few guarantees of success, Muteti confessed. He said the greatest challenge remained unwillingness of witnesses to testify to grave crimes for whatever reasons, including intimidation or coercion.

“The world may scream as much as it can, but you will not move an inch without witnesses willing to testify,” he said.

For Justice Muteti, ICD is not so much the issue as the Act is already in place. The fact of its absence is not in any way a hindrance to prosecution of international crimes in Kenya.

“I do not understand why we are anxious about ICD. Courts and Judges do not create cases. They wait for them! So far, we have only gotten one case, and its ongoing.”

Until his appointment as a judge last year, Muteti had been the Assistant Director of Public Prosecutions, the State institution which under Article 157 of the Constitution, undertakes criminal proceedings.

His High Court counterpart, Justice Diana Mochache had a different view. A specialized division has many other advantages as opposed to simply going through the criminal division of the High Court, which Justice Muteti now serves.

Demanding process

She said an ICD would create judicial expertise which would in turn translate to uniform and predictable application of the law, better case management, and opportunity to contribute to international criminal law jurisprudence.

In her opening remarks, Chief Justice Martha Koome had spoken to Justice Mochache’s sentiments when she said that the promise of ICA must be matched by practice directions, research, judicial training, and inter-agency coordination to make its procedures predictable to counsel, witnesses and victims.

The Chief Justice explained that international crimes litigations were demanding, requiring mastery of modes of liability, command responsibility, admissibility standards, and evidentiary challenges that differ from the ordinary criminal practice.

“One of the main reasons for the long delays in the Baby Pendo case is the many interlocutory applications or appeals. With proper training and expertise, judges at ICD would be able to make even extempore rulings to avoid these long delays,” Justice Mochache explained.

The Baby Pendo case revolves around the post-election violence of 2017 during which police deployed in Nyalenda slums, Kisumu killed Baby Samantha Pendo, raped women, and inflicted physical and mental pain on residents.

While the events took place in 2017, it was not until May this year that four senior police officers were charged with among others, murder as a crime against humanity under Sections 6 and 7 of the International Crimes Act and Article 28 of the Rome Statute.

Victor Owiti, a Principal Prosecution Counsel who was involved in the Baby Pendo case was in attendance at the Wayamo event. He explained the intricacies of prosecuting international crimes in Kenya, asking for greater goodwill from all agencies.

He talked of the perils of “inter-dependence” between State agencies involved, “the tie between law and politics,” and the “prosecutorial strategy” as decisive factors.

In addition, there are the international crimes thresholds of organizational policy, widespread-ness of the attacks, systematic-ity of the attacks, and the fact that they have to be directed at civilian populations.

“In the Baby Pendo Case, we ticked all the boxes. In the Shakahola Case, we sat down and considered ICA. We missed the threshold by a whisker in the murder charge,” he explained.

Owiti said the Shakahola II which is unravelling in Kwa Bi Nzaro forest, the Office of the Director of Public Prosecutions, would review, try and test whether ICA can be deployed as opposed to the conventional crimes in the penal code.

“We never want to test blindly without knowing what could happen with the evidence we have,” he cautioned.

Some participants, like Lydia Muthiani, a human rights advocate and co-founder Utu Wetu Trust, felt that the ICA needed to be relooked afresh. Enacted in the context of the post-election violence, Muthiani felt “there was a lot of copy-pasting of the Rome Statute.”

“It’s perhaps the time to close the ranks, and amend the law,” she said, pointing to the inadequacies of the Act, with a view to removing the barriers to prosecution of present and past crimes.

Justice Muteti was, however, quick to caution that any attempt to open up the Act before testing its limits would effectively “kill it” in the best interests of the political class.

Justice Muteti talked of the need to “keep eyes on the ball” and to remember why international crimes were enacted in the first place:

“What are we fighting here? Impunity! We cannot fight impunity using conventional means. That is in fact why the concept of international crimes was invented. We have to think beyond Kenya,” he advised.

The same position was adopted by Japheth Bigeon, the Africa Regional Advocacy Coordinator at Amnesty International.

He raised concern about indifference to the situation obtaining in the Sudan where factional groups have been flying fighter jets in civilian neighbourhoods of Khartoum, inflicting heavy civilian casualties.

“We like to see this as a Sudan problem yet the people of Sudan are as human as you and me. What are we doing about what is happening in Sudan? Could we file a case against what is happening there, even if it means that the case will only build attention towards the happenings there?”

Justice Lenaola has a wealth of experience in international law. Beyond his duties at the Supreme Court, he serves as the Vice President of the Special Residual Court for Sierra Leone, and is also President of the International Association of Refugee and Migration Judges.

From his experience, prosecution of international crimes at national levels presents a range of complex challenges, among them inadequate funding, the question of immunity for State officials and State cooperation.

“Political interference, lack of prosecutorial independence, and the manipulation of justice for partisan interests further complicate proceedings. Ensuring the safety and security of victims and witnesses also poses significant risks and logistical challenges,” he told the conference.

For him, it is intriguing that while African situations comprise the majority of the ICC cases, African voices are under-represented in shaping the international law doctrine.

At best, the relationship between Africa and international criminal justice has somewhat been “complicated”, or in his own words, “particularly complex.”

For instance, as soon as the cases against prominent Kenyan politicians were dropped at the ICC, discussions on the ICC ceased at both national and continental level.

The fury with which the African Union (AU) was making submissions on the alleged imbalance of international justice mechanism, including threats to quit the Rome Statute, died with the Kenyan cases.

“The solution is not abandonment of this body of law, but reinvigorated engagement,” Justice Lenaola advised.

According to Tina Alai, a Transitional Justice Advisor with the United Nations Commission on Human Rights in South Sudan, Kenya has pertinent reasons to worry about the efficacy of the International Crimes Act.

The country, she said, should be looking beyond the Baby Pendo case, including the events of the last one year where many young protestors were shot dead by the police.

The situation is even compounded by the possibility of a hotly-contested presidential election of 2027.

In all regards, the 2027 contest closely mirrors the 2007 one in intensity, institutional weaknesses, determination of candidates, and circumstances of a political fall-out. According to CJ Koome, all must do their part, within the law.

“The judiciary stands ready, independent in judgment, collaborative in spirit, and steady in purpose, to play its full part,” she said.

Justice Koome, however, did not explain why ICD cannot be operationalized 17 years later, even as she extolled the lessons from Uganda’s own ICD.

The establishment and operationalization of divisions in courts is largely an administrative decision of the judiciary.

The first and only attempt to set up JSC was undertaken during Chief Justice (Emeritus) Willy Mutunga’s tenure. A Judicial Service Commission was formed which explored the idea and even presented a report.

Deterrence effect

However, budget issues, technological capacity, readiness of party institutions such as the Witness Protection Agency, and political considerations slowed its rollout.

Granted, Kenya’s judiciary has made its mark in vouching for universal jurisprudence for international crimes. In the Bashir matter, the Court of Appeal affirmed Kenya’s duty to cooperate with the ICC in arrest of fugitives.

“It did not matter that the ruling came almost a year later. It had the necessary deterrence effect because it necessitated the moving of the IGAD summit which Bashir was due to attend in Nairobi, to Addis Ababa,” Alai explained.

Still, Uganda’s Judge of the International crimes Division of the High Court, Justice Susan Okalany found it odd that Kenya is lagging behind in operationalization of ICD.

“Whenever we are making decisions in Uganda, we are always citing Kenyan precedents. You have a solid jurisprudence, which leads in the region. But, you are lagging behind. Please, take this mantle from your baby, Uganda,” she joked.

At the conference, Wayamo Director Bettina Ambach underscored the place of civil society in the international criminal justice network, including the media’s role to report truthfully, objectively and in a manner that educates the society.