An Analysis of the Admissibility of the Kenyan Situation Before the International Criminal Court in Light of the Principle of Complementarity

Abstract

For every institution that respects democracy and the rule of law, there has to be checks counter-checks and balances. One of the ways by which the people of a particular country put a checks on the government is by way of regularly constituted elections. This was the position that Kenya as a country found itself in in the year 2007 when the country went into a general election. However, the general election brought more sorrow and anguish than had been contemplated, when the populace of the country, angry and dissatisfied with the results of the election, took to ethnic hatred, killings and violence which saw many individuals killed, while others were displaced. The situation in Kenya attracted international attention more so from the International Criminal Court prosecutor who commenced investigations on the possibility of there having been committed various atrocities within the Kenyan territory at that time. After investigations were concluded, the International Criminal Court prosecutor decided to institute proceedings a proprio motu under Article 15 of the Rome Statute. The commencement of the proceedings was met with resistance by the Kenyan government which launched an admissibility challenge before the court citing the principle of complementarity as provided for in the 10th paragraph of the preamble to the Rome Statute. The principle is to the effect that the International Criminal Court's jurisdiction is complementary to national criminal jurisdictions. It is on this basis that this paper seeks to discuss and analyze the merits and admissibility of the Kenyan situation before the International Criminal Court with regard to the principle of complementarity. The paper begins by distinguishing between jurisdiction and admissibility with regard to the Kenyan situation, and proceeds to have a discourse on the principle of complementarity and its application to the Kenyan situation. The paper concludes by making a definitive finding that the Kenyan situation is properly admissible in the International Criminal Court, the principle of complementarity having duly been considered.