When he assumed office in 2003 as the Chief Prosecutor of the International Criminal Court, Luis Moreno Ocampo stated that the number of cases reaching the ICC should not be used as a measure of its effectiveness. Rather, the absence of trials before the ICC, as a consequence of the regular functioning of national institutions would be a major success.
This clearly illustrates the fact that for the ICC and its prosecutor, the role of the court is not to compete with national courts in trying the worst international crimes, but to ensure that the offenders do not escape justice. The ICC, under its statute, will only step in where the national courts are unwilling or unable to prosecute, or where the domestic prosecutions are launched with the intention of shielding the suspect from the ICC.
Ocampo has already indicated that he intends to prosecute 4-6 cases. While this will be a major step bringing perpetrators of Post-election violence to justice, it is not enough. In 2009, The Attorney General published a report on Post-Election Violence showing that in Rift Valley alone, there were over 106 files opened by prosecutors, and nearly 504 accused persons. Few, if any, of these cases have moved forward to conviction. Therefore, the issue of local prosecution of suspects of post-election violence remains a live one.
But does Kenya have the will and the legal structures to launch effective prosecutions that will secure justice for the victims of the post-election violence as well as for accused persons? Certainly when Ocampo was seeking authority to investigate from the ICC pre-trial chamber, this did not seem to be the case- and the majority of the ICC judges agreed. However, with a new constitution in place, has the ground shifted sufficiently for the nation to reconsider whether local prosecution is an option?
A number of problems have hitherto prevented local prosecution. These include doubts about the independence of the judiciary and of the attorney general’s office, a criminal justice system that is overwhelmed by its case-load and the unchecked power of the Attorney-General to terminate cases by nolle prosequi were especially worrying. Furthermore, there seemed to have been a lack of will-power to effectively investigate Post-election violence cases locally. This is particularly true of matters of gender violence and of suspects with political influence.
The new constitution addresses some of these issues. The new judicial system is now solidly independent from the executive. The constitution provides under Article 160 that the remunerations and benefits payable to judges will now come directly from the Consolidated Fund. This should prevent the executive from interfering with the effectiveness of the judiciary by denying it adequate funding. The appointment of judges is now no longer a matter for the president alone. The Chief Justice and the Deputy Chief justice must now be approved by the national assembly before being appointed. This may prevent the president (or even the Prime Minister) exercising undue control over the head of the judiciary. Under Article 168, a judge can only be removed by a tribunal appointed by the President following a recommendation by the Judicial Service Commission.. Finally, the vetting of the judiciary ought to help re-create some of the respect for the impartiality and professionalism of judges that has seemingly been lost.
Another encouraging development is the Judicial Service Bill, part of the implementation of the new constitution and recently approved by the cabinet. Section 15 of the bill strengthens the independence of the Judicial Service Committee by ensuring that nominees to the committee are vetted by the National Assemble before the President can appoint them. The committee will also have to meet the gender balance requirements of the constitution.
He who pays the piper, calls the tune. Therefore, in line with the constitution, section 27 of the bill states that the expenses of the judiciary are paid from the Consolidated Fund and not by the executive arm allocating funding through the annual Appropriations Act. The Schedule to the Bill also sets out in detail the procedure for new appointments to judicial office. Vacancies must be publicly advertised and at every level there must be openness and accountability. This will also increase trust and respect for judicial appointments.
The constitution also clips the powers of the Attorney General. All prosecutorial functions previously exercised by the AG are now exercised by a Director of Public Prosecutions. This DPP is not subject to any outside authority in carrying out prosecutions. Under Article 157(2), the DPP can only be appointed with the approval of the National Assembly. Article 157(8) prevents the DPP from terminating cases without the permission of the court. This should again ensure that the political class and government cannot interfere in prosecutions for post-election violence to force the termination of politically-sensitive cases. Finally, because the DPP can only be removed on the recommendation of a tribunal, the independence of the office is further strengthened.
Another key development is that the DPP is able, under the constitution, to direct the Inspector-General to conduct a criminal investigation. This is a novel provision that may help to prevent the police bowing to political pressure to avoid investigating certain crimes or individuals. It should also ensure that crimes such as gender-based violence which are traditionally poorly investigated get the required attention from the police (especially in relation to rape and sexual violence of Post-Election Violence).
However, despite the many positive developments, there are still obstacles to justice for victims of post-election violence. Firstly, the judiciary is still weighed down by a heavy case-load. Justice delayed is justice denied, and unless prosecutions for post-election violence are ‘fast-tracked’ it may be years before some of the cases reach trial. This may not only create further resentment and bitterness from victims, but it could discourage many from coming forward as victims. Additionally, the longer the wait for trial, the lower the quality of evidence- especially eye-witness evidence- available. Even though victims may feel that their trauma will always be fresh and vivid, the sad experience of courts is that, often memory becomes more and more unreliable over time.
The ever-present fear of retribution is also still a problem from potential victims. There is still an uneasy peace in some areas that were worst-affected by PEV. This could create reluctance to come forward and testify in a local tribunal- even if anonymity is guaranteed- if the result is to enflame old grievances. Furthermore, with elections are only two years away. The same problem will face those who were victims of violence from security organs. If police officers are sent to investigate crimes committed by fellow officers, they may be met by a wall of silence built by fear.
Therefore, while the constitution creates renewed optimism by securing the independence of judicial and prosecutorial institutions, the practical and political problems that have consistently prevented local prosecutions for PEV still remain. In addition, many of the confidence-winning measures in the constitution and Judicial Service bill will take months if not years to fully affect public perceptions of the criminal justice system in Kenya. While the reforms are much needed, the question remains: will they take effect in time for credible and successful prosecution of PEV cases?
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