Kenya: Statement on Judge Kaul’s dissenting opinion on post-election trials

The view that the post-election violence cases committed in Kenya do not fall under the jurisdiction of the International Criminal Court by Judge Hans-Peter Kaul’s has stirred excitement in certain circles. The judge’s position has been interpreted as a rejection of the trial of the six post-poll violence suspects at the Hague. At the very least the judge has not asserted that the six have no case to answer. The judge averred that there were indeed crimes committed under the jurisdiction of Kenya but they did not meet the traditional standards to warrant trial at the ICC. In his estimation, they are crimes that ought to be investigated and prosecuted locally.

Judge Kaul’s position is informed by the fact that for the crimes to have been committed, they should have been perpetrated as part of an organisational policy. The judge states that there was no such organisation during the post-election violence. The second limb of his dissent is that the crimes must have been committed in pursuance of a state policy.

Judge Kaul’s position constituted the minority view in the ruling by the Pre-Trial Chamber of the ICC; hence his ruling is only relevant in academic discourses on the question of jurisdiction of the ICC and the question of admissibility of cases before the court.

Kenyans must remember his emphasis that crimes were committed during the post-election violence period and those crimes should be tried. This underscores the need for a local mechanism to process those perpetrators that will not be tried at the ICC.

Although Justice Kaul insists that Kenya’s criminal justice system can investigate and prosecute the cases, TI-Kenya holds the view that any judicial mechanism used to deliver justice must be one that is credible and meets constitutional and international standards. The failure by the Kenyan Government to institute a local mechanism to try the post-election violence cases provided an opportunity for the ICC to take over the cases in the first instance. Kenya squarely met the ‘unable and unwilling’ requirements of the Rome Statute as three years since the post-election crisis no credible justice system has been established. Indeed Kenyans are not aware of any investigations carried out by our institutions on the violence thus far. The current justice system is yet to undergo reforms critical in addressing integrity and efficiency challenges that have long affected access to and delivery of justice in the country. Therefore it is imperative that concrete plans to address such challenges are put in place before any cases touching on the post-election violence are referred for local resolution.

TI-Kenya reaffirms its support for the trial of individuals who bear the greatest responsibility for the violence at the Hague and calls for speedy judicial reforms that will precede a local mechanism to try those not mentioned by the ICC Chief Prosecutor Luis Moreno Ocampo.