Prosecuting International Crimes in Kenyan Courts?

Abstract

This paper offers a case study of domestic prosecution of international crimes, focusing on describing attempts made in Kenya to create a legal and institutional framework for such prosecutions. The paper takes the starting point in analyzing Kenya’s International Crimes Act, which domesticates the Rome Statute, and the proposed International and Organised Crimes Division. 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 promoting accountability for international crimes, the paper argues that 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 2007/8 post-election violence. Importantly, as will be shown in this paper, the debate over creating a national mechanism to prosecute Rome Statute crimes cannot be separated from developments relating to the Kenyan International Criminal Court cases, including the Government’s attempts to end or undermine this process.