Social Science Research Council

This is the second of three essays on misconceptions in debates over transitional justice in Kenya. The first essay considered complementarity and the Truth, Justice and Reconciliation Commission (TJRC), and argued that, if Kenya’s situation was otherwise admissible to the International Criminal Court (ICC), the TJRC in its current form is unlikely to satisfy the Court’s complementarity test. This essay considers the discussion on domestic prosecutions in Kenya.

From the standpoint of constitutional law, the handing over of the Waki envelope to the prosecutor of the International Criminal Court (ICC) represents the ceding of judicial autonomy of the state to an ‘exceptional court’. The establishment of a domestic special tribunal which supplants the supervisory jurisdiction of the High Court and strips the president and attorney general of constitutional powers and immunities has a similar effect.

The Kenyan Cabinet recently resolved to put forward the Truth, Justice and Reconciliation Commission (TJRC) as a way to address the post-election violence. In this first of three essays looking at some of the misconceptions in the transitional justice debate in Kenya (the next two contributions will consider domestic and international prosecutions respectively), I evaluate whether the establishment of the TJRC makes the Kenyan situation inadmissible before the International Criminal Court (ICC).

At the conclusion of its Summit in Sirte, Libya, on July 1, 2009, the Assembly of Heads of State and Governments of the African Union (AU) decided that “AU Member States shall not cooperate … in the arrest and surrender of President Omar El Bashir of The Sudan.” In a press release issued two weeks later, on July 14, the organisation explained that this decision “bears testimony to the glaring reality that the situation in Darfur is too serious and complex an issue to be resolved without recourse to an harmonised approach to justice and peace, neither of which should be pursued at the expense of the other.”

Kenyans are very suspicious of the rare unity between the Cabinet and the Parliament as they jointly dismiss calls for the prosecution of the perpetrators of post-election violence atrocities. This unscrupulous behaviour is not coincidental, but a well crafted strategy: the Cabinet and Parliament are distorting facts on the requirements for a local tribunal, in order to escape accountability. Politicians are satisfied that they are now sharing the spoils and that it is business as usual. They prefer to push the issues that contributed to the crisis under the carpet in order to focus on efforts to capture power in 2012. While we commend the Kenyan government for renewing efforts to enact the Special Tribunal to try those responsible for the 2007 election violence, we believe that nothing short of momentous symbolic shock therapy to the political elite would incentivize formation of an effective, independent and impartial Tribunal locally. Here, we believe the International Criminal Court (ICC) continues to have a major role.