Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights violations. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms.
Following the 2007/8 post-election violence, Kenya embarked on a transitional justice process under the framework of the Kenya National Dialogue and Reconciliation and the National Accord which resulted from a negotiated agreement between the two main parties that contested the presidency. While much ground has been covered including the adoption of a new Constitution, the creation of a Truth, Justice and Reconciliation Commission, Judicial and other institutional reforms, the criminal prosecution component remains the most controversial.
One of the agreements that comprised the Accord was the setting up of a Commission of Inquiry into Post-Election Violence (CIPEV or the Waki Commission) to investigate the facts and circumstances surrounding the violence, the conduct of state security agencies in their handling of it, and to make recommendations concerning these and other matters. The Waki Commission recommended the creation of a Special Tribunal for Kenya with the mandate to prosecute crimes committed as a result of post-election violence. The tribunal was to have an international component in the form of the presence of non-Kenyans as judges and on senior investigations and prosecutions staff.
Despite the President and the Prime Minister having signed an agreement to implement the Waki Commission Report and the adoption of the Report by Parliament, legislation to create the Special Tribunal failed to get the requisite majority in Parliament leading ultimately to Kofi Annan, the Chairperson of the Panel of African Eminent Personalities, forwarding a sealed list of suspects to the International Criminal Court (ICC) for investigation. The ICC Prosecutor subsequently sought and obtained permission from the Court to open charges against six prominent Kenyans four of whom have had charges against them confirmed by the Pre-Trial Chamber. And so Kenya became the fifth African country to have cases being investigated and prosecuted by the ICC.
The ICC, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely crimes against humanity, war crimes, genocide and the crime of aggression. The ICC is governed by the Rome Statute which was adopted by 120 states meeting at an international conference in Rome in 1998 with the Court itself coming into being on 1 July 2002 after the requisite ratification by 60 countries.
The formation of the ICC was a culmination of a long debate dating back to the end of the First World War leading to a global consensus that impunity for the most serious crimes known to humanity was no longer acceptable, and agreeing on a definition of the crimes the ICC was set up to prosecute. Before the ICC, international crimes had been prosecuted in ad-hoc tribunals in Nuremberg and Tokyo after the Second World War, in The Hague for atrocities that took place in the Former Yugoslavia after the breakup of that country in the early 1990s, and in Arusha following the 1994 Rwanda genocide.
In its ten years of existence, the ICC has indicted 25 people facing trial in 14 cases. One of these, Thomas Lubanga Dyilo from the Democratic Republic of Congo, was recently convicted of war crimes for recruitment of child soldiers in Eastern DRC during that country’s brutal civil war, becoming the first person to be convicted by the Court.
So far, all the people facing charges at the ICC are from Africa. This has led to accusations that the ICC is unfairly targeting Africa with some critics going so far as to suggest that it is a European funded tool for imperialism and neo-colonialism. Following the issuing of an arrest warrant against President Omar El Bashir of Sudan on charges of genocide, war crimes and crimes against humanity in Darfur, the African Union made a decision during its 13th Ordinary Session held in Sirte, Libya, in July 2009, not to cooperate with the ICC on enforcing the warrant.
While it is uncontestable that all the cases so far being prosecuted at the ICC involve African suspects, this does not mean that the ICC is unfairly targeting Africans or that it is a tool for Western imperialism. It should be remembered that some of the impetus for creating an international criminal court came as a result of some of the unspeakable atrocities that African people have borne at the hands of African dictators and rebel groups who hitherto murdered their people and looted their economies with impunity. Indeed African countries and civil society provided a strong voice in support of the creation of the ICC before and during the Rome Conference.
It should also be remembered that the ICC is a treaty based Court whose membership is voluntary. Thirty three out of 54 African countries have signed up to the ICC, the largest continental block among 121 signatory countries. Among the seven situation countries under investigation by the ICC, three (Uganda, the Democratic Republic of Congo, and Central African Republic) were referred to the ICC by the governments of those countries; two (Sudan and Libya) were referred by the UN Security Council; In the case of Cote D’Ivoire, former President Laurent Gbagbo accepted the jurisdiction of the ICC in April 2003 under the provisions of Article 12(3) of the Rome Statute. Only in one case (Kenya) did the ICC Prosecutor commence proceedings on his own motion after having obtained permission to do so from the Court and after the Kenyan authorities failed several times to establish a Special Tribunal to prosecute post-election violence.
One little understood fact about the ICC is that it operates under the principle of complementarity. This means that being a court of last resort, it exists to complement member states which have the primary responsibility to investigate and prosecute international crimes. The ICC does not assume jurisdiction unless the state is unable or unwilling to investigate and prosecute. In many cases, the standards of justice in Africa are often poor either because of the ravages of war and conflict which have left in their wake weak or non-existent institutions, or because of lack of judicial independence which makes it impossible for courts to prosecute perpetrators who still wield power and influence over them.
The other reason why some African leaders are crying foul is that for the first time in the continent’s history, powerful perpetrators of gross human rights violations are being held accountable in a forum they cannot manipulate. The view that the ICC is targeting Africans is the view of the political and military elites which is not shared by a majority of the African peoples and certainly not by the victims of atrocities who know only too well that they stand little chance of obtaining justice at home. A good example is Kenya where opinion polls have consistently shown a preference for prosecutions at the ICC for post-election violence crimes over domestic courts. Further, not all African political leaders are against the ICC. South Africa, Botswana and Malawi have all warned President Bashir that they would arrest him and transfer him to the ICC should he step on their soil and a Kenyan Court has issued a provisional arrest warrant for him should he visit the country in the future.
The ICC is not a perfect court; no justice delivery system is. It is clearly controversial, if not outrightly unjust, that the UN Security Council has a decisive role in referring cases to the ICC or suspending ongoing trials while three of the five permanent members of the Security Council (Russia, China and the USA) are not ICC member states. But the way to address this problem is not to champion impunity but to encourage non-members to sign up. Also although there are currently five non-African countries currently under preliminary examination by the ICC (Afghanistan, Colombia, Georgia, Honduras, and South Korea), there is need for greater balance in the regional scope of the ICC’s investigations and prosecutions. But this is not to detract from the important role that the ICC is playing and will continue to play in combating impunity in Africa. As Abdul Tejan-Cole, a former prosecutor at the Special Court for Sierra Leone points out, ‘… while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case before the Court that one could dismiss as being frivolous or vexatious. They might all be African but they are also all legitimate. It is farcical that we can equate the trial of 25 accused with the trial of an entire continent.’
Back to Kenya, it should not be forgotten that before the intervention of the ICC, no influential person or politician had been held accountable for human rights violations despite the fact that Kenya’s post-independence history has been marred by torture, massacres, political assassinations, politically motivated ethnic violence and massive economic crimes. While clearly inadequate to bring to justice all the perpetrators of these human rights violations, it cannot be denied that the ICC will have a positive impact on the search for justice for some of the victims of these violations and will hopefully spur the reformed domestic criminal justice system to investigate and prosecute middle and lower level perpetrators. This will be an abiding contribution to democracy and the rule of law in Kenya.
Njonjo Mue - an Advocate of the High Court of Kenya, serves as the Deputy Director for Africa at the International Center for Transitional Justice. The views expressed in this article are his own and do not necessarily represent the position of ICTJ.