Social Science Research Council

This debate is organized by Oxford Transitional Justice Research (OTJR), working in partnership with the International Center for Transitional Justice – Africa, and The Darfur Consortium. For PDF documents of the debate please go to http://www.csls.ox.ac.uk/otjr.php?show=currentDebate10. To participate please follow the submissions guidelines below and send an 800-1500 word contribution to the debate editor: lydiah-kemunto.bosire@politics.ox.ac.uk.

There exists in Africa a general agreement about the need for accountability, but a divergence exists as to how this could be pursued. Some countries use criminal prosecutions to address the aftermath of mass violence. Others prefer non-punitive mechanisms, like truth commissions and amnesty, as alternatives to criminal prosecutions. Some countries use truth commissions in [...]

When a Kenyan Cabinet minister suggested in early 2007 that perpetrators of corruption be pardoned if they confessed their guilt and returned the spoils, there was surprisingly little public reaction. This was perhaps taken with a pinch of salt given that Kenyan politicians are good at talking but then doing nothing. But when former anti-corruption chief John Githongo (accused by some of behaving like a drama queen and self-appointed high priest), made a similar statement in mid August 2008, his view made headlines that drew sharp reactions.

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.