International Criminal Court Should Be a Last Resort for Justice
March 25, 2009
Kenya cannot simply choose to abdicate its responsibility as a state and fail to prosecute those who caused death and destruction last year.
Kenneth Roth, executive director of Human Rights Watch

(Nairobi) - The Kenyan government should urgently renew efforts to revise and enact bills to create a special tribunal to try those responsible for last year's election violence, Human Rights Watch said today. The organization also issued a memo explaining the procedures of the International Criminal Court in relation to the special tribunal.

The Commission to Investigate the Post-Election Violence had set a deadline of January 30, 2009, to pass legislation to establish the tribunal, with Kenyan and international judges. But on February 12, parliament voted against a constitutional amendment, the first of two bills that would have established the tribunal. On February 24, Kofi Annan, chairman of the Panel of Eminent African Personalities and the broker of the original agreement that ended the violence, granted the government more time to reintroduce the measures.

"The special tribunal is the best option for justice for the victims of last year's election violence," said Kenneth Roth, executive director of Human Rights Watch. "If the tribunal is manipulated by the government, then the threat of the ICC remains, but it should be a last resort, not the first port of call."

Human Rights Watch called on the Kenyan government to amend the flaws in the draft legislation and take steps to win public support for the bill before reintroducing it in parliament. Among other steps, Human Rights Watch urged that:

  • The government of Kenya consult with civil society and legal experts to address criticisms of the existing draft bills for the special tribunal and constitutional amendment. In particular, the bills need to ensure that the tribunal judges are completely independent and that no one is immune from justice under its jurisdiction.
  • The United Nations and African Union offer technical assistance to the Kenyan government to redraft the bills.
  • Parliament involve itself in early consultations to guarantee that members' concerns are addressed before the bills are reintroduced.
  • The government complete the revisions and reintroduce the bills as soon as possible.
  • Foreign governments reiterate that the special tribunal is the key test of the commitment of the coalition government and the 10th parliament to the accord brokered by Kofi Annan, the former United Nations secretary-general, to end the violence and pave the way for the power-sharing agreement. Foreign governments should also provide all necessary legal and financial assistance to the tribunal.
  • Kenyan authorities ensure that there is coordination between the special tribunal and the Truth, Justice and Reconciliation Commission.
  • The Office of the Prosecutor of the International Criminal Court continue its monitoring and analysis of the process.

Kenya has a responsibility under international law to bring those responsible for crimes against humanity and other international crimes to justice regardless of whether parliament establishes the special tribunal. Establishment of a special tribunal with international participation would be an important first step in improving the capacity of the Kenyan judicial system. Furthermore, trials in Kenya of those most responsible for post-election violence will make such proceedings fully accessible to Kenyans and will show that Kenya can bring its criminals to justice.

The International Criminal Court retains jurisdiction at all times, and if at any point the Kenyan government proves unwilling or unable to administer justice, the ICC will have the right to step in to prosecute the main suspects.

"Kenya cannot simply choose to abdicate its responsibility as a state and fail to prosecute those who caused death and destruction last year," said Roth. "If there is no national accountability process, a few chief suspects might end up in The Hague, but allowing the others to escape justice will only encourage more violence next time."

Background

Following the violence set off by the controversial 2007 presidential elections, the Kenya National Dialogue and Reconciliation Committee, led by Kofi Annan, agreed to set up the Commission to Investigate the Post-Election Violence (the Waki commission), an Independent Review Committee to look at the flaws in the election (the Kriegler committee), and a Truth, Justice and Reconciliation Commission to help heal historical grievances dating from before the 2007 general elections.

The Waki commission recommended wide-ranging reforms of the police as well as the creation of a special tribunal for Kenya, independent of the judiciary, anchored in a constitutional amendment and staffed by both Kenyan and international judges and prosecutors. Justice Philip Waki, who headed the commission, set out a clear timetable for the establishment of the tribunal and handed a sealed envelope containing names of suspects to Annan for forwarding to the International Criminal Court, should the government fail to set up the tribunal in time, fail to meet his standards of independence, or subsequently subvert the process in any way.

Annan has delayed twice in sending the envelope to the ICC to give the government an opportunity to establish the tribunal. There is no constitutional impediment to re-introducing the bills and setting up the tribunal as soon as possible.