By Lillian Aluanga
A Motion passed by the East African Legislative Assembly urging the International Criminal Court to transfer Kenya’s cases to the East African Court of Justice raises eyebrows.
Describing the ICC as a ‘neo-colonial court’ that should not be entrusted to serve justice to suspects accused of crimes against humanity during post-election violence, the assembly members are calling for the transfer of the cases to the Arusha-based court.
Deputy Premier Uhuru Kenyatta, former Civil Service head Francis Muthaura, Eldoret North MP William Ruto and journalist Joshua Sang are to stand trial at the ICC.
Eala’s resolution comes hot on the heels of a verdict by The Hague-based Special Court for Sierra Leone, which found former Liberia’s President Charles Taylor guilty of crimes against humanity including conscripting of child soldiers, murder, terror and rape. It also follows comments made by the Executive in a State of Union address last week implying the Government was seeking ways to have the suspects tried locally.
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The Special Court for Sierra Leone should not be confused with the International Criminal Court, under which the Kenyan cases fall. It is, however, part of international mechanisms employed in the pursuit of justice for victims of atrocities often associated with conflict. Taylor’s verdict comes barely a month after that of former DRC rebel leader Thomas Lubanga whom the ICC found guilty of crimes against humanity.
Onslaught on process
The move by Eala is the latest in a series of attempts to pull Kenya’s cases out of ICC, but legal experts say it may have little, if any, impact on the ongoing process.
International Commission of Jurists, Kenya Chapter chair George Kegoro says the East African Court has no jurisdiction to try crimes of any kind, let alone international crimes which the four suspects face.
"Kenya’s power elite has never been interested in pursuing justice for post-election violence victims and is simply playing politics with Eala," says Kegoro. Kenya, Kegoro says, is using Eala the same way Sudan has used the African Union (AU) to shield President Omar al Bashir from the ICC.
"It’s a proposal that is not practical at this point. It is more of a political rather than a practical statement informed by factual understanding of the East African Court of Justice," says International law expert Godfrey Musila.
Dr Musila says as it is currently constituted, EACJ is limited under Article 27, to only arbitrating matters that involve member states.
"For the last six years, there has been a pending draft proposal seeking to increase the court’s mandate to include handling issues of human rights. But even if the proposal were to be effected, there would still be need for a treaty to extend jurisdiction of the court to include international crimes. The court would also need to have permanent judges as opposed to the current situation where judges only sit when there is a case to be determined," says Musila.
During its session, the assembly resolved to have the chair of the Council of Ministers submit its resolutions to the Summit of EAC Heads of State on proposed Amendments to Article 27 of the treaty, which would see similar cases of international crimes brought to EACJ.
Musila, however, says even if EACJ was to be mandated to handle international crimes, it would not deal with crimes that had already happened, but rather those occurring in future.
Then there are the cost implications associated with prosecuting international crimes. It is estimated that the ICC spends at least 100 million euros in a year, which means the East African court would require enormous resources to set up a similar court. "The ongoing proceedings at the ICC cannot be affected by any resolutions at this point in so far as the content of the court process is concerned," says International Centre for Transitional Justice’s Christine Alai.
Referral of cases
According to Alai, the discussion on returning the cases back to Kenya can only be applicable if, say, victims of the post-election violence were to lodge an application asking for the court to sit anywhere else other than The Hague.
Alai describes the latest move by Eala as ‘part of an orchestration of different activities calculated towards the possibility of future non compliance with the International Criminal Court’.
"When has Eala discussed the plight of post-election violence victims? What is motivating its actions and why is it suddenly so concerned about the ICC? Why has it to date made no proposals to support the Kenyan government in setting up a mechanism that would bring justice to the victims of post-election violence?" poses Alai.
In reference to the verdict on Taylor, Alai says it sends a clear message that impunity will not be condoned regardless of an individual’s status.
The Special Court for Sierra Leone is somewhat similar to what had been proposed for Kenya had she chosen to set up a local tribunal to try suspects.
Taylor’s case differs from Kenya’s on several fronts including the fact that the crimes he was accused of were committed in a neighboring country (Sierra Leone).
The court was also established under different circumstances to the ICC, with the latter established by member states under a treaty, while Sierra Leone’s government and the United Nations jointly set up the former. Although the court held its sittings in the capital Freetown, Taylor’s case was moved to The Hague owing to security concerns.
Alai refers to the ‘mode of liability’ that Taylor was found guilty of which made reference to his abetting in the commission of crimes.
"The significance lies in the fact that even though one may not have physically been present at the scene of crime, this type of liability can be used to determine guilt," she says. Musila, however, says the very same basis is an indictment on the prosecution.
He says it is important to distinguish acts that constitute a crime and various forms of individual responsibility. Often the prosecution will pursue an argument that a crime happened but what is even more important is for it to link individuals to the acts.
International law has developed various forms of individual responsibility through which senior people can be linked to crimes committed by others. These are: Command responsibility which shows an individual was part of an organisation or at the top of the hierarchy of such a grouping that committed crimes; joint criminal enterprise, which refers to an individual being part of a joint criminal plan to commit crimes; and aiding and abetting, which is basically a fallback position.
"The first two are the most important and in Taylor’s case, the prosecution failed to link him to them. That is a serious indictment on his part," says Musila.