Domestic Prosecutions of International Crimes in Africa : Kenya

Following the announcement of the 2007 general election results, Kenya plunged into unprecedented violence. The upheaval left in its wake over a thousand people dead, hundreds sexually violated and hundreds of thousands physically displaced from their homes. The Kenyan government failed to investigate or prosecute perpetrators of any of these grave offences, despite the magnitude and gravity of the violations suffered by the civilian population. Investigations were initiated only for the more minor violations and in any event those investigations or prosecutions were terminated. As Kenya is a State party to the Rome Statute, the International Criminal Court (ICC) intervened in the situation indicting six persons and eventually initiating prosecution against three of these six, alleged to be the most responsible and/or the most senior perpetrators of the violations. Under the principle of complementarity the ICC recognized the primacy of the State in question to prosecute international crime over which it has jurisdiction. The ICC only comes in when the State is unwilling or unable to investigate or prosecute the case. Most recently however, and as illustrated in the Kenyan case, the ICC can only deal with the most senior and most responsible perpetrators. However, the remaining impunity gap must be addressed by the State in question if the rule of law is to be properly re- established in the country. Previous attempts at establishing a domestic accountability mechanism have come to naught. This report therefore is a comparative study of the various justice mechanisms established outside of the ICC in order to address international core crimes. Focusing on Uganda, Cambodia, Bosnia-Herzegovina and Sierra Leone, this study seeks to compare different frameworks in order to draw lessons that Kenya can use in its quest for justice. These four regimes represent a purely domestic system, an internationalized domestic system, and two distinct hybrid systems.