Kenya’s judiciary chiefs want continued support for judges to remain consistent in handling cases of international crimes, seeking to provide the complementarity as provided for in law.
And the Chief Justice Martha Koome said on Tuesday it will require adequate research, judicial training and inter-agency coordination to make court procedures predictable for all.
There has been a push for Kenya to establish its international criminal division of the High Court for the last decade, a product of a 2008 law known as the International Crimes Act.
That law was passed to blunt the need to have suspects caught on Kenyan soil from being shipped to international tribunals and provide Kenya with adequate grounds for complementarity.
But such can only be perfected with solid legal grounding, well-trained judicial officers and consistent decisions based on law.
Kenya’s CJ said that international crimes litigation is demanding on officers because it requires mastery of modes of liability, command responsibility, admissibility standards, and challenges of deciding evidence, which differ from ordinary criminal practice at home.
“These are precisely the kinds of administrative reforms contemplated in our transformation frameworks and now taken forward in STAJ (Social Transformation through Access to Justice) blueprint,” the CJ said in a speech read on her behalf by High Court judge Alexander Muteti.
The judiciary says it will continue exploring, docketing and improving its case-management solutions. It also said it will continue imp[roving on judicial education through the Kenya Judiciary Academy, and collaborate with the National Council on the Administration of Justice.
Justice Koome said within the High Court, the Judiciary we will continue exploring, docketing and case-management solutions, judicial education through the Kenya Judiciary Academy, and collaboration under the National Council on the Administration of Justice.
The CJ said this will ensure that the cases receive consistent handling, while preserving the constitutional guarantee that justice is not the privilege of a few forums.
But to be consistent on cases, it will require support from other stakeholders to preserve the constitutional guarantee that justice is not the privilege of the privileged.
“The imperative that emerges is uncomplicated: we must each do our part, at speed, within law,” she said during a symposium titled, Appraising International Criminal Justice in Africa , at Strathmore Institute for Advanced Studies in International Criminal Justice (SIASIC).
Kenya and peers Uganda, Rwanda and the Democratic Republic of Congo have all seen their nationals stand up in court in international tribunals, accused of committing heinous crimes back home.
Sometimes the cases have been truncated on lack of evidence or witness tampering. In other cases, the foreign judges have gone on to decide jail terms. But it has also forced local authorities to improve on their legal frameworks to reduce the need for foreign tribunals.
One such tribunal has been the International Criminal Court, where politicians like President William Ruto, his predecessor Uhuru Kenyatta and various other individuals faced charges. The cases collapsed, however, on lack of sufficient evidence.
Some legal scholars have argued no Kenyan would have been taken to The Hague-based Court were there sufficient institutions back home to try the suspects.
Justice Koome admitted that ongoing conflicts in the region means hard realities with that will continue to test the resilience of institutions and the reach of law.
Judicial organs have also faced pressure from international bodies that continue to report on atrocities and demand sustained, coordinated responses.
“If we do that consistently, public confidence follows,” she said, indicating Kenya may have to learn from peers like Uganda and South Africa whose International Crimes Division is more advanced and has built a specialised practice around international crimes trials and demonstrated that domestic authorities can investigate atrocities within their jurisdiction.
“These are examples of the region using domestic courts to narrow impunity gaps,” she said.
Kenya’s International Crimes Act domesticated the Rome Statute, the seminal law that created the International Criminal Court. It was adopted on December 12, 2008 and took effect on January 1, 2009. However, as sufficient institutions hadn’t been created, the ICC indicted Six Kenyans who faced charges at The Hague from 2012.
The Act gives the High Court jurisdiction over war crimes, crimes against humanity and genocide. One of the cases being handled by the High Court is the Baby Pendo case of a baby bludgeoned to death by security agencies chasing down protesters after the 2017 elections, in Kisumu.
Supreme Court judge Isaac Lenaola noted that while African situations comprise the majority of ICC cases, their voices have been underrepresented in shaping international criminal law doctrine.
“This imbalance has fostered perceptions of bias and undermined institutional legitimacy. However, the solution is not abandonment of this body of law, but reinvigorated engagement,” said the judge.
Mr Bettina Ambach, the director of Wayamo Foundation, which has been in the forefront in the push for the establishment of the International and organised division of the High Court, said the functioning and success of the international crimes division will depend on the existence of sufficient political will.
