Complementarity in Kenya? An Analysis of the Domestic Framework for International Crimes Prosecution
The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application, The International Nuremberg Principles Academy, 2016
21 Pages Posted: 28 Nov 2015 Last revised: 16 Aug 2017
Date Written: November 27, 2015
Kenya ratified the Rome Statute on 15 March 2005 and the Statute entered into force on 1 June 2005. Kenya has domesticated the Statute by adopting the International Crimes Act (ICA), which came into force on 1 January 2009. The ICA provides the foundation for giving effect to the Rome Statute within Kenyan law, including the principle of complementarity, as it gives Kenyan courts jurisdiction to prosecute these crimes; provides the foundation for Kenyan authorities to provide the International Criminal Court (ICC) with requested information, transfer to the Court persons against whom the ICC has issued arrest warrants and otherwise cooperate with the ICC; and lays down provisions permitting the ICC to operate within the country.
Following continued talks concerning the establishment of a Special Tribunal or a special division of the Kenyan High Court to prosecute international crimes committed in the context of the 2007/8 post-election violence (PEV), in January 2015 the Kenyan Judiciary confirmed that it will establish a so-called International and Organised Crimes Division (IOCD) within the High Court. The IOCD will have jurisdiction over international crimes as defined by the Rome Statute as well as transnational crimes, such as organised crime, piracy, terrorism, wildlife crimes, cybercrime, human trafficking, money-laundering and counterfeiting.
While the establishment of a specialized division of the Kenyan High Court to prosecute international crimes has been lauded by many as an important step towards ensuring accountability for international crimes, there are significant challenges giving effect to the principle of complementarity in Kenya, including lack of investigatory and prosecutorial capacity; challenges relating to the protection of witnesses and victims; and more broadly lack of political will to prosecute the perpetrators of international crimes, particularly those committed in the context of the PEV.
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