The legal challenge of civil militia groups in Kenya

Abstract

This article argues for an efficient prosecution, and it is in bridging this efficiency gap between a nominal and an efficient prosecution that international criminal law and its attendant institutions can play a role. The judiciary in Kenya requires a strong system of checks and balances and international criminal law institutions can bolster the Kenyan judiciary's prosecution of civil militias by filling in technical gaps. The ICC enshrines this principle under its complementarity regime that recognises the primacy of national jurisdictions over international prosecutions but allows room for cooperation between the two. Bassiouni notes that international prosecutions as a matter of policy focus on the prosecution of decision-making officials, and if this were done in Kenya it would reduce the social tension such a prosecution can place on the already fragmented state. In the case of Kenya, speculation about the role that ethnic considerations play in the prosecution of civil militias could be reduced by an international prosecution of the ringleaders and / or financiers of the movements. This would also diffuse the potential for violence.