September 22, 2019

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Kenya and the ICC (International Criminal Court): Reconciling the Past

Although a certain level of violence has accompanied Kenya’s electoral process since the restoration of multi-party politics in 1991, the 2007 presidential elections saw an unprecedented level of violence that was “by far the most deadly and the most destructive violence ever experienced in Kenya.”  It left over 1,100 Kenyans dead and between 350,000 and 500,000 displaced.  Over seven years later, the question of whether victims will see justice or perpetrators will be held accountable remains unanswered.  Much of the discussion of the decision of the International Criminal Court’s chief prosecutor to drop the case against Kenyan President Uhuru Kenyatta for his alleged role in the violence has been on whether the international court has the ability to end impunity and bring justice.  However, the court is a forum of last resort that was established to be “complementary to national criminal jurisdictions.”  Focusing on the international court incorrectly absolves Kenya of its ongoing failure to shoulder its responsibility for bringing justice and accountability in the aftermath of the elections violence.

The requisite legal framework has been in place for years namely under the Penal Code, the Sexual Offences Act, and the International Crimes Act.  Furthermore, the Commission of Inquiry into Post-Election Violence provided a number of recommendations as to how to strengthen these domestic laws and resolve obstacles to applying them to cases arising under the post-election violence. As is too often the case, the challenge has been in implementation. The relevant actors have proven either unable or unwilling to pursue investigations and prosecute alleged offenders.  Indeed, near the beginning of this year, the Kenyan Director of Public Prosecutions (“DPP”) revealed that none of the 5,000 pending post-election violence cases were “prosecutable.”

The government now has stated that it will establish an International and Organized Crimes Division (“IOCD”) within the High Court by the end of the year.  However, whether this body will address the 2007 post-election violence remains under debate.  It is not promising that the DPP has opposed the creation of the IOCD and claimed that it would be unconstitutional for the body to have its own independent prosecutor or investigative division.

It is far past time for Kenya to demonstrate its commitment to the rule of law by confronting and reforming the shortcomings that seems tailored to, but yet has not served, the victims of the 2007 elections.  Regardless of how the ICC proceeds with the cases that are still open, the onus is — and always has been — on Kenya to bring justice and accountability to its citizens.

© 2019 Covington & Burling LLP

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Covington’s Election and Political Law practice is one of the oldest in the Nation.  In addition to our high-profile election law litigation and Federal Election Commission enforcement practice, we advise numerous Fortune 50 and Fortune 500 corporations, trade associations, financial institutions, political party committees, PACs, candidates, lobbying firms, and high net-worth individuals concerning compliance with the increasingly complex array of laws governing the political process.  These include federal and state campaign finance, lobbying disclosure, and government...

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