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ELECTION 2022

The steep cost of international criminal justice that mars justice

COMMENTARY
By Charles Wanguhu | Jun 23rd 2012 | 3 min read

By Charles Wanguhu
In January 2008 as part of a group of human rights practitioners who had been working on monitoring the elections, we received a call on the expulsion from their homes of inhabitants of the Limuru/Tigoni region who were perceived to be ODM supporters.

We immediately responded to the call and on arrival encountered the now familiar scenes of people fleeing, carrying all their belongings and children in tow.

The destination was Tigoni Police Station and on a cold day household belongings that were salvaged from the wreckage of their lives were neatly arranged in all corners. Children in all their innocence were running around, playing, oblivious of the danger they had been placed by an alleged declaration by a local politician making them persona non grata in the area by virtue of their ethnicity.

On our return to Nairobi we passed the ‘Kirathimo’ camp where truck after truck was arriving from the Rift Valley with people who had similarly become persona non grata in the Rift, but now were seemingly welcome in the Limuru area.

While interviewing some of these victims a middle aged woman, driven almost mad with grief, ran from left to right wailing in anguish, and shouting names of individuals. On enquiry we were informed that she had lost her husband and three sons during an attack at her home in Burnt Forest, and had since been inconsolable.

Four years later, on January 31, when Pre-Trial Chamber II decided to confirm the charges against the Ocampo Four, it was probably the first time in Kenya’s history that victims had encountered a glimpse of justice for the crimes committed against them.

The International Criminal Court (ICC) is a court of justice mandated to exercise jurisdiction over crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression.

The ICC, as an independent body, was viewed as the only hope for justice for the victims. However, global developments including the continued economic crisis in Europe, point to a worrying trend of a court laden with expectations but finding itself constrained in achieving the honourable ambitions it set out to.

The ICC is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. 

The current economic crisis means that States Parties are less willing to make contributions to enable the court to achieve its mandate. This means amputating core functions of the court as enshrined in the Rome Statute. The most worrying aspect of these budget cuts pertains to victims and the outreach section of the court. 

Victim participation at the ICC was lauded as one of the best innovations of the court. For Kenyan victims this is a unique opportunity to be involved in the judicial process and have their voices heard. This feature is a novel approach as Kenya has no form of victim participation in our domestic legal system, not even victim impact statements, which have become pro-forma in other common law jurisdictions like the UK and Australia.

But we seem to find ourselves in a situation where cost considerations trump the effective administration of justice for the victims.  Some of the new cost-saving proposals include removing the current legal representatives for victims, and replacing them with the Office of Public Counsel for victims.

The fundamental problem lies with letting policy decisions such as these to be dictated by overzealous fiscal management.

The displaced victims in Limuru or the one previously in Tigoni now forced to relocate to their “home” in Siaya, is unlikely to share an ethnic, cultural or linguistic heritage with a bureaucrat at the Office of Public Counsel for Victims.

Additionally, making OPCV’s appointment as common legal representative mandatory would block a competitive selection process whereby only the most competent lawyers are able to represent victims before the ICC.

The writer is a human rights practitioner

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