Criminal Accountability at Domestic Level


Number of cases concluded

Number of cases pending before courts

AG’s directives about action to be taken on the cases pending before courts

Proceed to logical conclusion

Withdraw and close file

Withdraw for further investigations








Rift valley







































Author’s adaptation from the statistical information presented in Republic of Kenya 2009 (AG’s report on the post-election violence related cases), pp. 8–37

The report further indicates that, as of the report date, there were 3,627 cases under investigation (not yet brought to court) all of which in Rift Valley. The cases pending in courts were in respect of 33 specific penal code offences, while those already concluded were in respect of 27 offences.

According to the report, the following number of cases (quantity shown in brackets) had been concluded in respect of the specified penal code offences: robbery with violence (two); arson (five); attempted arson (two); stealing (six); burglary and stealing (two); malicious damage of property (one); creating disturbance (one); taking part in riots (five); possession of offensive weapon (one); obstructing police (one); shop breaking and stealing (eight); stock theft (four); being armed in public (one); house breaking and stealing (four); breaking into building and committing a felony (five); incitement to violence (six); bar breaking and committing felony (two); handling stolen property (four); breach of peace (one); conveying stolen property (three); store breaking and stealing (one); stealing motor vehicle, publishing false rumour, preparing to commit a felony (one); bond to keep peace (one); threatening to kill, threatening violence, setting fire on calculated crop, inquest, riotously interfering with vehicles (two); hotel breaking (two); and being armed in public (one).101

As can be discerned from the report, most of the concluded or ongoing investigations and prosecutions had been in respect of relatively “minor” offences, and mostly relating to property. For example, while no single case had been concluded with regard to the crimes of “murder” and “assault causing actual bodily harm”, only five cases and one case were pending in court in respect of the two crimes, respectively.102 What is completely missing in the report is any mention of or information about concluded or pending cases in respect of sexual offences, despite the fact that high number of rapes occurred during the post-election violence and were reported. The report itself expressly observed that until then no subsequent follow-up had been made in respect of the high number of complaints recorded in the internally displaced people’s camps, specifically noting that the number of murder cases being investigated or pending in courts was comparatively too small in view of the high number of deaths reported during the violence.103 Consequently, the report was quickly dismissed by the ICC Prosecutor as he argued that it was not reflective of a serious willingness to fight impunity.104 Attorney-General’s Report of 2011

In March 2011, 2 years after the first report was compiled, the Kenyan government through its Attorney-General released another document which was supposedly a “follow-up progress report” to the 2009 report.105 In this “updated” report, the most prominent chapter was that on gender related violence, which had been completely missing or omitted in the previous Attorney-General’s Report. The 2011 report shows that by the date on which the report was published, 399 investigations against 311 persons had been started or concluded in relation to five gender related crimes, namely defilement, attempted defilement, rape, attempted rape and gang rape.106 A further breakdown regarding sexual offences was as follows: (a) 45 accused persons had been convicted; (b) 41 cases had been withdrawn or acquitted; (c) 25 cases were pending arrest; (d) 72 cases were still pending investigations; (e) 49 cases against unknown accused members of the police force were pending; (f) 105 cases had been forwarded to the Attorney-General seeking his authorization to withdraw; and (g) 62 cases were under trial in court.107 Table 4.2 provides further statistical information on the status of cases as at March 2011, including those relating to sexual offences.

Table 4.2
The status of cases relating to the post-election violence in Kenya per province in respect of all crimes as at March 2011


Cases still under investigation




Pending arrest of known suspects

Rift valley




































Author’s adaptation from the statistical information presented in Republic of Kenya 2011 (AG’s updated report of post-election violence related cases), pp. 70–72

One observation to make at this stage is that the 2011 report does not present comprehensive information. In the first place, the report was not an outcome of a thorough exercise. It was compiled in a hurry (only in 10 days)108 primarily because the Kenyan government wanted to submit it to the ICC to support its admissibility challenge in respect of the two cases before the Court (see infra Sect. 6.​5.​3.​2.​2). The report itself states that in that short period of time not all anticipated cases were reviewed and updated.109 It is further acknowledged that with the exception of the figures on the gender related violence, the rest of the report is a duplication of the information contained in the 2009 report.110 On these grounds, Human Rights Watch dismissed it as an unreliable report which was “compiled hastily, with little concern for accuracy”, and which, as a result, was “riddled with errors”.111 Among flaws which have been identified with regard to the report include, for example, acquittals which were labelled as convictions and the inclusion in the report of cases which were completely not related to the post-election violence, with a view to making numbers impressive for purposes of the above-mentioned admissibility challenge.112 Moreover, like the 2009 report, it is not clear how the list “priority cases” alleged to have been compiled by the police feature in the 2011 report. Human Rights Watch Survey of 2011

An independent and comprehensive survey on the status of national investigations and prosecutions of the cases related to the post-election violence was conducted by Human Rights Watch between February and November 2011. The survey covered 13 court jurisdictions in five provinces which were most affected by the violence.113 Apart from interviews, the research entailed a perusal of 76 court files on selected cases. The selection only targeted cases that could be categorized as “high profile cases”. According to Human Rights Watch, two criteria were used in determining whether a particular case passed the high-profile-case test. The first criterion was the official or societal position of the accused persons during the post-election violence. In this regard, the investigations and prosecutions “involving politicians, police, business people, or other influential citizens” were classified as constituting high-profile cases. The second criterion of a high-profile case was the gravity of the offences charged. Falling under this category were cases “involving serious charges, such as murder, robbery with violence, rape, defilement and assault causing actual bodily harm”.114

This survey was an eye-opener. It acknowledged that some progress had up until then been made in the way the domestic courts in Kenya were dealing with the post-election violence cases. It stated that the sweeping allegation that “no one had been convicted in Kenya for the 2007 post-election violence” in respect of high profile cases was not entirely true. Instead it found that by November 2011, there had been at least six convictions in respect of high-profile cases in the domestic courts due to “solid police investigations and assiduous work on the part of the prosecutors”.115 The convictions were for domestic ordinary crimes in respect of the felonies of murder, robbery with violence and causing grievous bodily harm.116 Similarly, there had been seven acquittals in respect of felonies of murder, rape and robbery with violence;117 while nolle prosequi 118 had been entered in respect of three other cases.119

In June 2012, subsequent to the publication of the Human Rights Watch Report, three more individuals were convicted by the Kenyan High Court for murder related to the post-election violence. Life imprisonment and death penalty were imposed.120 Therefore, from 2011, the number of concluded cases in respect of serious crimes was growing steadily. Gaps and Challenges in Respect of the Domestic Prosecutions

As admitted above, the domestic courts have been engaged in prosecuting some of the post-election cases as ordinary crimes. What is evidently missing, however, is any tangible progress in respect of cases involving the architects of the violence, the “big fish”. For example, 5 years after the violence, there was still no single record of a case against any of the people mentioned in the report of the Kenya National Commission on Human Rights to be the most responsible for the violence. Interestingly, the DPP said that he was unaware of the so-called “priority cases” that the police claimed to have compiled.121 Highlighting the impunity with regard to the big fish, in June 2011, the Nairobi-based Star newspaper reported as follows:

More cases related to serious crimes have gone forward (…) but they rarely targeted senior leaders or police use of excessive force. The dozens of convictions for petty crimes are outnumbered by withdrawals or acquittals for petty and serious crimes alike.122

Furthermore, for the few cases that have been investigated and prosecuted as ordinary crimes, myriad challenges have been encountered. As already shown, the number of cases completed successfully in respect of serious crimes has, so far, been minimal if compared to the seriousness, magnitude and number of crimes linked to the post-election violence. This is not to suggest that all prosecutions of crimes related to the post-election violence must necessarily result in convictions. But it is to argue that investigations or prosecution of such cases must at least portray the degree of seriousness they deserve.

On the contrary, the investigations and prosecution of some of the few cases that were prosecuted were faced with several limitations; they were devoid of competence and seriousness and were marred by sheer recklessness on the part of the prosecutors. In Republic v. Kiprotich Letting et al., for example, the presiding judge lamented about the outrageous “casual manner” in which the investigations and prosecution were handled.123 He blamed what he referred to as “shoddy investigations” of the case on the police,124 noting that courts should not be accused of furthering impunity even though it is the investigators and prosecutors who did not bother to do their job competently. In some cases, mostly those prosecuted by the police prosecutors, the biggest weakness is that acts which could have constituted serious crimes were charged as less serious crimes, apparently because the police prosecutors failed to appreciate the correct nature of the crimes.125 These kinds of challenges can be attributed to the ill-equipped prosecutorial authority in terms of, among other things, inadequacy of human resources as illustrated below.

According to Keraiko Tobiko, Kenya’s DPP, by November 2011, there were only 72 trained prosecutors serving in the DPP’s office, although the requirement then was 504.126 This extreme dearth of trained lawyers in the office of the DPP is attributed to factors other than lack or shortage of law graduates in Kenya.127 As a response to the problem, the 2010 Kenyan Constitution, just like the previous Constitution, provides that the “Parliament may enact legislation conferring powers of prosecution on authorities other than the DPP”.128 It is by virtue of this provision that the task of prosecuting criminal cases has been delegated to lay prosecutors (non-lawyers).

For instance, in all courts subordinate to the High Court (i.e. Magistrates’ Courts), criminal cases are still prosecuted by police officers.129 By virtue of the Kenya Police Force Standing Orders “all police officers of or above the rank of inspector are public prosecutors”.130 There is an exception to this rule which allows for officers of even a subordinate rank to inspector to prosecute in district magistrates’ courts.131 Most (almost all) of these police prosecutors are not lawyers by training. As of November 2011, the number of police prosecutors was 302, but only six of them had a law degree.132 Although a proposal to phase out the police prosecutors was announced in 2011, its full implementation is yet to be realized.133

The challenges highlighted above affect the prosecution of crimes in general; they are not unique to the prosecution of the crimes associated with the post-election violence. But such challenges make it even clearer that, with regard to the criminal acts related to the post-election violence, the current status quo speaks more in favour of the prosecution of the conduct as ordinary crimes in the Penal Code with which the lay prosecutors and the trained prosecutors are more conversant. It would be more difficult for them if they were asked to prosecute it as “crimes against humanity” as such, the reason being that the additional task or burden to prove the contextual elements of crimes against humanity would make their job even more challenging, thereby risking letting the masterminds of the post-election violence go scot free.

Way Forward?

Grappling with the challenges highlighted above, and faced with endless calls for fighting impunity by deeds, the Kenyan government continued to act under mounting pressure throughout 2011, thanks to the ongoing ICC process. The pressure to reconsider a new strategy for effective domestic prosecution of those most responsible for the post-election violence was felt after 23 January 2012, the date on which the charges against four of the six Kenyans originally indicted before the ICC were confirmed.134 Following the ICC’s decisions in this regard, Githu Muigai, the newly appointed Kenya’s Attorney-General, appointed a “working committee on the ICC”, a ten-member panel tasked with advising the government on the “way forward”.135 The Committee comprised legal scholars, including two foreign international criminal law experts, Sir Geoffrey Nice and Mr Rodney Dixon, who acted for the Kenyan government in its unsuccessful admissibility challenge before the ICC.136

In what appeared to be an attempt to give domestic prosecutions a new impetus, and apparently this being the only way to keep the ICC away, the working committee advised the Kenyan government to give “immediate consideration” to the formulation of a comprehensive policy to deal with the post-election violence cases, including those before the ICC. It was advised that such policy should entail, inter alia: (i) a “reasonable balance” between retributive and restorative justice; (ii) conducting of a special audit of all the crimes committed during the post-election violence with a view of making an informed decision as to which ones to prosecute or terminate on the basis of the available evidence and the availability and or willingness of the witnesses to testify; (iii) appointment of “a special prosecutor” with a “strict timetable” for the completion of investigation and prosecution of the most serious offenders, regardless of rank or position of the perpetrators.137

It was further advised that the envisaged special prosecutor should be assisted by international experts in performing his or her duties, “taking into account the challenges faced by the current prosecutorial department and the great need to deal with the [post-election violence] expeditiously and on a priority basis”.138 According to the recommendations of the working committee, it was no longer necessary to create a special tribunal to try these cases, given that the judiciary had been reformed and become competent.139

In November 2012 the Kenya’s new Chief Justice Dr Willy Mutunga stated that Kenya’s Judicial Service Commission140 was “at an advanced stage of setting up an International Crimes Division [ICD] of the High Court”141 This name created an immediate impression that the envisioned Division would first and foremost prioritize the prosecution of the crimes linked to the 2007–2008 post-election violence in line with the implication of the report by the working committee. But surprisingly, when the establishment of this Division was announced in April 2013, it turned out that it may have nothing to do with the post-election violence. It was made clear by the Attorney-General, who is also a member of Kenya’s Judicial Service Commission,142 that the ICD would have a prospective effect.143 Interim Conclusion

This section has analysed the ordinary-crime approach as a legal framework for prosecuting the alleged crimes against humanity committed during the post-election violence in Kenya. It has been demonstrated that prosecuting and punishing the crimes as ordinary crimes under the Kenyan Penal Code can achieve the same purposes as prosecuting and punishing them as “crimes against humanity” as such. This argument gives prominence to the conduct which is targeted by the punishment rather than to the label or characterization under which that conduct is punished. Consequently, the argument that Kenya did not (or does not) have any laws to prosecute the alleged crimes against humanity linked to the post-election violence has been dismissed. It has been shown that Kenya has, to some extent, used its Penal Code to prosecute the crimes committed during the violence, despite the several challenges encountered. But what remains the biggest flaw is that such prosecutions have not targeted those listed as being most responsible for the crimes.

4.3.2 Prosecuting as Crimes Against Humanity as Such

Having analysed the ordinary-crime approach and having concluded that the approach provides an adequate legal framework to prosecute the criminal acts committed during the post-election violence, this section explores one more option, namely the possibility of also prosecuting the acts as crimes under international law as such i.e., under their label as “crimes against humanity”. The section analyses whether it would be possible to do so on the basis of customary international law or the Kenya’s International Crimes Act of 2008. Relying on International Customary Law Introductory Note

Crimes against humanity had already been established as crimes under customary international law even before the adoption of the ICC Statute144 or the occurrence of the post-election violence in Kenya. A customary international crime is a prohibited criminal conduct which has acquired a jus cogens status, thereby constituting it as obligatio erga omnes. Consequently, for such crimes, a non-derogable and a mandatory duty exists for states to prosecute them without any restriction.145

The preceding paragraph would suggest or imply that, theoretically, the ultimate codification of crimes against humanity into the domestic laws of Kenya in 2008 was merely a “declaration” or “reinstatement” of a pre-existing set of crimes. Arguably, the crimes could, as a result, have been directly enforceable in the domestic courts, whether or not there was an implementing legislation. One of the reasons given for this argument is that in common law countries, such as Kenya, criminality may be based on both written and unwritten laws.146 However, actual practice from common law countries indicates that domestic courts are not prepared to prosecute and punish individuals charged with crimes only envisaged in customary international law but which are not expressly codified in the domestic laws.147 This is without exception to important common law jurisdictions such as the United Kingdom148 and Australia.149 It is, therefore, important to find out the position in Kenya. Enforceability of Customary Law in Kenya: An Overview

The same reluctance cited above with respect to Australia and United Kingdom is foreseeable in the Kenyan courts. This is true despite the fact that, strictly speaking, the legal system of Kenya is a mixture of common law and customary law. Part of what is usually referred to as “African customary law” is enforceable in the Kenyan domestic courts even though it is uncodified and not uniform as customs differ from one ethnic (tribal) community to another. In fact, this particular category of law, like Acts of Parliament and the Constitution, forms an independent source of law in Kenya. However, the African customary law is enforceable only insofar as it relates to matters of civil nature, mostly succession and marriage. The so-called “African customary crimes” are not enforceable in the Kenyan courts for that matter.150

There is no record of prosecution of any of the core crimes under international law in the Kenyan domestic courts solely on the basis of its status under customary international law. However, there is evidence of prosecution of the customary crime of piracy on the basis of universal jurisdiction. But as it will be shown shortly, the Kenyan courts were able to exercise jurisdiction over the crime of piracy not solely on the basis of its jus cogens character, but on the basis of a clear Penal Code provision.

The Interpretation and General Provisions Act151 is the law that governs how Kenyan laws should be interpreted. Pursuant to this legislation, the interpretation of the word “offence” as applicable in Kenya does not seem to cover a customary law offence, for it is confined to a “written law”. Accordingly, the word “offence” is defined as “a crime, felony, misdemeanour or contravention or other breach of, or failure to comply with, any written law, for which a penalty is provided”.152 Furthermore, a “written law” is restrictively defined to include three types of laws, namely: (i) an Act of the Kenyan Legislature; (ii) an applied law; or (iii) a subsidiary legislation which is currently in force in Kenya. And an “applied law” means an Act of a legislature of a foreign country or an Order in Council of the United Kingdom or any subsidiary legislation made under them and which is in force in Kenya.153

The preceding paragraph speaks against a possibility of bringing charges in the Kenyan courts solely on the basis of the jus cogens nature of a norm, unless there is evidence that such a norm had been codified (written) domestically at the time of its breach. It would not matter if the customary norm had already been codified in an international instrument. On this basis, a legal practitioner in Kenya believes that the domestic courts would not be prepared to accept international customary law as a sole basis for charging the crimes under international law allegedly committed during the post-election violence.154

In spite of the restrictive definition of the word “offence” as outlined above, the Penal Code of Kenya theoretically retains the enforceability of the “unwritten” common law offences. Particularly, the Penal Code clearly provides that although it codifies individual offences, nothing in it shall affect or prevent “the liability, trial or and punishment of an offence against the common law”.155 But since crimes under international law per se are not common law crimes156 in the sense of the Kenyan Penal Code, this provision cannot be extended by analogy to include them. Moreover, practice shows that even big common law jurisdictions such as the UK, the USA, Australia and Canada have gone a step further to codify what used to be unwritten common law crimes, the fact which indicates that the enforceability of unwritten (uncodified) crimes (if any) remains largely theoretical.157 Considerations from Specific Jurisprudence of Kenyan Courts

As shown earlier, under the old Constitution (1963–2010), Kenya followed a strictly dualist approach of implementing international law pursuant to Okunda v. Republic. As a result, international treaties or customary law would be enforceable in domestic courts only if expressly codified and domesticated. However, from 2002, a new jurisprudential trend, which started to “loosen” the strict dualist practice, specifically with regard to human rights treaties, started to emerge. Thus, from Rono v. Rono 158 onwards, various rulings stated that for purposes of interpretation of domestic laws, Kenyan courts could rely directly on international customary law embodied in human rights treaties that had been signed without reservation “even in the absence of implementing legislation”. According to the High Court, this consideration was necessary to ensure that Kenya “was moving intandem with emerging global culture”.159

A question that arises is whether this reasoning could also be applied with respect to customary international criminal law which entails not merely “an emerging global culture” but a settled principle of zero tolerance to impunity for, inter alia, international customary crimes contained in the ratified treaties. This question is yet to be addressed by the Kenyan domestic courts.

One could further consider the often-cited prosecutions of the customary crime of piracy in Kenya, especially the 2009 High Court Judgment in Hassan M. Ahmed v. Republic.160 However, two points must be clarified before proceeding further. First, piracy is not a crime under the ICC Statute, but is one of the earliest jus cogens crimes for which universal jurisdiction applies.161 Second, unlike crimes against humanity, which had not been domesticated in Kenya at the time of the post-election violence, piracy, as charged in Hassan v. Republic, had already been codified as a crime in the domestic laws of Kenya at the time of its commission.162 Therefore, the issue in Hassan v. Republic was not whether jurisdiction over the crime of piracy could be founded solely on its jus cogens nature. Rather, the issue was whether the trial court was right in exercising universal jurisdiction in respect of pirates arrested in the high seas, for it was argued that Kenya lacked any traditional jurisdictional links to them.

The relevant part of Hassan v. Republic for the purposes of this book comes at the end of the judgment. The High Court made a finding by way of an obiter dictum (i.e. remarks based on hypothetical facts assumed by the court). It first quoted the Penal Code provision establishing the crime of piracy in Kenya to show that it was indisputably an offence under the existing domestic written law. Having done so, the learned judge went on to opine:

Even if the Penal Code had been silent on the offence of piracy, I am of the view that the Learned Principal Magistrate would have been guided by the United Nations Convention on the Law of the Sea which defines piracy in Articles 101 (…) I would go further and hold that even if the Convention had not been ratified and domesticated, the Learned Principal Magistrate was bound to apply international norms and Instruments since Kenya is a member of the civilized world and is not expected to act in contradiction to expectations of member states of the United Nations.163

If, according to the High Court, the magistrate would have been “bound” to apply the definition of piracy in an international convention “even if the Penal Code had been silent”, a question that arises is whether this statement opened the Pandora’s box to allow other crimes of the same nature i.e., those that are also jus cogens constituting obligatio erga omnes, including crimes against humanity, to be directly prosecutable as such in Kenya on the basis of their customary nature. A US-based Kenyan scholar, James Gathii, is of the view that the answer to this question is in the negative. He rightly bases his argument on the common law principle of stare decisis, which is also applicable in Kenya, and on English judgments which have expressly rejected a direct enforceability (in domestic courts) of undomesticated international customary crimes.164 In Kenya, and generally in the common law tradition, the part of a judgment which creates binding law (precedent) is the ratio decidendi (i.e. the one that disposes of the issues raised). An obiter dictum does not create law, but merely carries a persuasive value.165

Therefore, the opinion of the judge quoted above, which was an obiter dictum, did not change the status quo. Moreover, it cannot be argued with confidence that domestic courts in Kenya would interpret a criminal law treaty in the same way they would do for a treaty on socio-economic human rights. This is because, by its nature, criminal law involves the curtailing of personal liberty of individuals (accused). As a result, whenever doubt or ambiguity exists, courts tend to be very strict in interpreting and applying rules of criminal law, and always to the advantage of the accused person. Interim Conclusion

There is no doubt that crimes against humanity had become jus cogens crimes before their commission during Kenya’s 2007–2008 post-election violence. Thus, if the criminal acts committed during this particular violence were to be charged domestically as crimes against humanity per se by directly relying on customary international law, such charges would not, in principle, violate the principle of legality. However, as it has been shown, practice clearly indicates that domestic courts in common law countries have, in such circumstances, expressly declined to entertain an indictment made solely on the basis customary international law which is not part of their written domestic laws. In addition, at the time of commission of the alleged crimes in Kenya, there was no provision conferring jurisdiction over such crimes on the domestic courts. As such, it may, therefore, not be possible to prosecute crimes against humanity as such solely on the basis of their jus cogens status, for the courts might claim not to have jurisdiction. Relying on the International Crimes Act of 2008 Domestication of the ICC Statute

As already stated, although at the time of the post-election violence Kenya had already ratified the ICC Statute, it had not domesticated it; it was purportedly still “in course with internal procedures for its domestication”.166 The Waki Commission recommended the fast-tracking of the domestication process, expecting that the resulting law would be used by the proposed Special Tribunal for Kenya to prosecute the crimes committed during the violence.167 This was done through a comprehensive piece of legislation, the International Crimes Act of 2008, which came into force on 1 January 2009.168 The purpose of this legislation is to “make provision for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes, and to enable Kenya to co-operate with the International Criminal Court established by the Rome Statute in the performance of its functions”.169 General Overview of the Act

The Act, to which the ICC Statute is annexed as a Schedule, domesticates by reference all the core crimes and almost all the general principles of criminal law contained in the ICC Statute.170 Moreover, it requires that in interpreting the Act Kenyan courts must first “have regard” to the ICC’s Elements of Crimes before the Kenyan Penal Code, and that in the case of a conflict between the two, the former prevails. The Kenyan courts can exercise jurisdiction over the crimes mainly on the basis of the territoriality or nationality principles.171 Universal jurisdiction can also be exercised, but only if the perpetrator is present in Kenya after committing the offence elsewhere.172

The Act is slightly broader than the ICC Statute as regards crimes against humanity. It defines crimes against humanity to also include an act defined as such in conventional or customary international law “that is not otherwise dealt with in the Rome Statute”.173 However, the Act has a few inconsistencies with the ICC Statute. For example, it does not domesticate the principle under article 27 of the Statute which outlaws official capacity of the suspect as a justification for non-prosecution for crimes under international law. The relevancy of official capacity is only outlawed in relation to Kenya’s exercise of duty to respond to requests for transfer or surrender of an immune person to the ICC or another state.174 This seems to have been a deliberate omission to make the Act consistent with the then Constitution, which granted such immunity to the President.175 However, this omission has now been cured by Article 143(1) of the Constitution of Kenya of 2010 which, although it extends similar immunity to the President, has introduced an exception that explicitly removes “international crimes” from the scope of such immunity.

Initially when the Act was enacted, two concerns emerged. The first concern was that in view of the existing Constitution, the President could grant pardon to people convicted for the international crimes under the Act pursuant to the President’s constitutional prerogative powers of mercy.176 Although there is abundant literature clearly illustrating the fact that the culture of impunity has previously been entrenched in Kenya, especially with respect to certain types of crimes or perpetrators, there are only a few incidents in which such impunity is said to have resulted from an obvious “abuse” of the prerogative powers of mercy vested in the President.177 However, the possibility of abuse for political reasons, especially when high-profile political figures are involved, cannot be completely ruled out. It is noteworthy that these powers have been retained in the Constitution of Kenya of 2010, but a check has been introduced to some extent.178

Another issue that has raised a concern relates to inconsistencies between the International Crimes Act and the ICC Statute or with other domestic criminal law legislation as far as penalties and the minimum age of criminal responsibility are concerned. While the maximum penalty that can be imposed by the ICC is life imprisonment,179 the maximum penalty for murder constituting a crime under the Act is death sentence.180 Similarly, the minimum age of criminal responsibility for the core crimes domesticated in the Act is 18 years181; it is much higher than the lowest age of criminal responsibility in other domestic crimes.182 Implications of the 2010 Constitution on the Act

The new Constitution of Kenya, adopted on 27 August 2010, introduced a new legal position with regard to enforceability of international law in the domestic courts in Kenya. It officially converted Kenya from its previous strict dualist practice to a monist practice of implementation of international treaties.183 By virtue of Article 2 of the 2010 Constitution, both conventional and customary norms of international law become directly applicable and enforceable in Kenyan domestic courts without necessarily having to be domesticated, provided that they do not conflict with the Constitution.184 According to Gathii, the entire series of treaties, including criminal law treaties, which Kenya had ratified but not domesticated, became enforceable as part of Kenyan law from the date on which the new constitutional provision became operational.185

There is a view that the new position above i.e., the change from dualism to monism per se, has created a possibility for the International Crimes Act of 2008 to be applied retrospectively, making it possible to charge the alleged crimes against humanity committed during post-election violence, 1 year before the Act was enacted. The next section outlines such a view and related arguments, and also analyses such a possibility. Evaluation of Retroactivity Vis-a-Vis the International Crimes Act

The question whether the International Crimes Act could be used to try the alleged crimes against humanity relates to the principle nullum crimen, nulla poena sine lege (principle of legality). Among other things, this principle seeks to enhance certainty of the law and safeguard individuals against arbitrary actions of state, thereby strengthening the rule of law.186 To achieve this, the principle embodies, inter alia, two main prohibitions. Firstly, it prohibits the punishing of a conduct which had not been clearly defined by the relevant legal order as constituting a criminal offence at the time of its occurrence. Secondly, it prohibits an imposition of a penalty which had not been clearly defined, or which is heavier than that which had been defined by law at the time of the commission of the alleged crime.187 In view of these prohibitions, one question arises: “When an international crime is prosecuted in a national court, is the law under which the prosecution occurs national or international? For purposes of legality, which law must be in place at the time of the act?”188

Initially, some commentators noted that it was “not clear” whether Kenyan domestic courts would agree to apply the International Crimes Act of 2008 retrospectively.189 Others argued that the Act “cannot be” applied retrospectively.190 Okuta, for example, argued that the Act is “merely a tool for the future”, implying that, apparently, its application can only remain prospective.191 However, later, when the 2010 Constitution was adopted, the arguments changed slightly because of Article 50(2)(n) of the Constitution which provides:

Every accused person has the right to a fair trial, which includes the right not to be convicted for an act or omission that at the time it was committed or omitted was not (i) an offence in Kenya; or (ii) a crime under international law.192

In view of this provision, the Attorney-General’s working committee on the ICC (see supra Sect. 4.​3.​1.​5) advised the Kenyan government as follows:

As a matter of law, the committee notes that “international crimes” (which include crimes against humanity) that were allegedly committed during the [post-election violence] are triable in Kenya despite being committed before the coming into force of the International Crimes Act on 01 January 2009…. The provisions set out in Article 50(2)(n) of the Constitution … permit Kenya to have jurisdiction in respect of crimes that were committed under international law at the time of [the violence].193

The Kenyan government put forward the same argument before the ICC.194 For the reasons given below, it is submitted that the advice in the above-quoted paragraph is sound and could be implemented. However, a minor but crucial amendment to the International Crimes Act of 2008 would be required.

Pursuant to what Bassiouni refers to “the substantive aspect” of the principle of legality, if, at the time of commission of a crime under international law, a state had ratified a convention establishing the crime, or if the crime had acquired a jus cogens status, then such a crime could or should be prosecuted in national courts of that state without the fear of breaching the principle of legality.195 This view is based on the meaning ascribed to the principle of legality under the provisions of several international instruments, including Article 15 of the International Covenant on Civil and Political Rights (ICCPR)196; Article 11 of the Universal Declaration of Human Rights (UDHR)197; and Article 7 of the European Convention on Human Rights (UCHR).198

According to the Kenyan Interpretation and Application of Laws Act,199 the date on which a piece of legislation becomes operational in Kenya can be either (i) the day on which the legislation is published in the Gazette; or (ii) a day specified in that legislation to be the date on which it “shall come or be deemed to have come” into operation.200

The fact that a piece of legislation in Kenya can be “deemed to have come into operation” suggests that the Kenyan Parliament can assign a retrospective operational date to a piece of legislation, thereby “deeming” it to have come into force on a date earlier than that on which it was passed. However, a caveat must be added here: For criminal law legislation, such retroactivity may (and should) be permitted or tolerated only if it does not violate the purposes of the principle of legality. In this regard, it is submitted that retroactivity is justifiable in two scenarios. The first scenario is where it aims at conferring jurisdiction ratione materiae or jurisdiction ratione temporis on the national courts for crimes already existing under customary international law over which the domestic courts would not have had jurisdiction had it not been so expanded. The second scenario is where such retroactivity entails a retrospective re-labelling (re-naming) of an already criminalized conduct, provided, of course, that the conduct in the “new label” does not carry a punishment which is heavier than that which it would otherwise have carried had it been prosecuted under the “old label”.201

On the basis of the foregoing, it is submitted that, the Kenya’s International Crimes Act of 2008 could be made to apply retroactively, and thereby charge the crimes against humanity committed 1 year before the enactment of the Act. Such legislative amendment would only be retrospective from a chronological point of view, but would not otherwise lead to the punishment of non-criminalized conduct at the time of its commission.202

There is the argument that since the Kenyan International crimes Act became operational “well after the commission of the crimes in question”, the principle against retroactivity is “a feasible defence if raised at the domestic level, even though such a defence would not stand before an international tribunal”.203 The argument implies two things. First, it suggests that because “crimes against humanity” as such were not provided for (codified) anywhere in the Kenyan domestic laws at the time of the post-election violence, then the perpetrators would not have been aware of their prohibition. Second, the argument also suggests that there should be a distinction or dichotomy between domestic courts and international tribunals in the manner in which they apply and interpret the principle of legality.204

The argument above is not entirely convincing because, as already shown, irrespective of their legal characterization under international or domestic law, the substantive conduct in the criminality committed during the post-election violence had already been criminalized under the Kenyan Penal Code. The perpetrators could not, therefore, purport to have been unaware of the prohibited conduct (or at least the illegality thereof) at the time of its commission.205 For purposes of the principle of legality, it is enough that the criminalization of the conduct had been established; it does not matter whether the accused knew the legal label or characterization of the conduct under international law.

A similar argument pertaining to retroactivity was advanced by the defendants during the Nuremberg trial in respect of crimes against peace and crimes against humanity for which individuals were prosecuted for the first time in history. They claimed that these two categories of crimes were non-existent prior to their alleged commission, and that, prosecuting them before the IMT was, therefore, a violation of the principle of nullum crimen sine lege. Rejecting this argument, the IMT indicated that the principle of legality could not be used as an absolute bar to state’s sovereignty in punishing criminality. The Tribunal established that the conduct was already “illegal” under the existing international law and arguably criminal. It then justifiably observed as follows:

The maxim “nullum crimen sine lege” is not a limitation of sovereignty, but in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties have [planned to attack] neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.206

Applying the above IMT ruling in the context of Kenya, it could be argued that it is within Kenya’s sovereignty if, as has been suggested, it amended its domestic laws retroactively to provide for the alleged crimes against humanity. However, if the crimes are to be prosecuted as crimes under international law as such, the definitional criteria as well as the individual acts in respect of which such amendment should cover must be only those which had already indisputably acquired a jus cogens status at the time of their commission. In that regard, such amendments would not create new crimes as such, but would only be codifying crimes which had already existed under customary international law. The amendment would only play three roles, namely: (i) to put the crimes in a “written law” on the basis of which the charge can be brought; (ii) to prescribe the applicable penalties and (iii) as already stated, to confer jurisdiction on the domestic courts over the crimes. The third role has precisely been described as “retroactive expansion of criminal jurisdiction”.207

Other common law jurisdictions, particularly Canada and New Zealand, have domesticated the ICC Statute retrospectively to achieve similar goals. According to the Canada’s Crimes against Humanity and War Crimes Act of 2000, international crimes committed before the adoption of the ICC Statute can be prosecuted retrospectively, provided they had qualified as crimes under customary international law at the time of their commission. This law also provides that genocide, crimes against humanity and war crimes are deemed to have reflected customary law by the time the Statute was adopted. The Act further provides “for greater certainty” that crimes against humanity had already constituted a criminal conduct under customary international law or general principles of law recognized by civilized nations arguably “even prior” to the Nuremberg and the Tokyo Charters of 1945 and 1946, respectively.208 Basing on this legislation, on 22 May 2009, the Superior Court of Quebec convicted Mr. Desire Munyaneza for genocide, war crimes and crimes against humanity committed in Rwanda in 1994.209

Similarly, although the ICC Statute was domesticated in New Zealand in 2000, 2 years after its adoption, the domesticating legislation provides that jurisdiction for genocide and crimes against humanity commences retroactively on 28 March 1979 and 1 January 1991, respectively. These are the respective dates on which New Zealand acceded to the 1948 Genocide Convention, and when the jurisdiction of the ICTY for crimes against humanity commenced.210

Therefore, if Kenya was to amend and give a retrospective effect to its International Crimes Act of 2008, it would not be setting a new precedent in the common law world. Kenya would not breach the principle of legality or the principle of individual guilt. Interim Conclusion

Given that international criminal justice is becoming increasingly important, there should not be room for international or domestic jurisdictions to use technicalities to defeat its purpose, especially in places such as Africa where such atrocities are on the increase. Allowing that to happen would be tantamount to using the law to defeat (instead of promoting) the ends of justice. Thus, domestic jurisdictions must always ensure that their application and interpretation of the principle of legality seeks to promote substantive justice for serious forms of criminality.211 Since the principle of legality does not prohibit retrospective confirmation of jurisdiction on courts, the Kenyan International Crimes Act of 2008 could be amended if at all the alleged crimes against humanity must be prosecuted under that label. However, such amendment would be possible only if there was a political will to genuinely fight impunity with respect to the post-election violence, especially with regard to the main perpetrators.

4.4 Issues Relating to Exercise of State Prosecutorial Function

Having analysed Kenya’s substantive criminal law and the options it offers for the domestic prosecutions of the alleged crimes against humanity, it is suggested to also highlight issues relating to the exercise Prosecutorial function in Kenya. Such analysis is relevant for one main reason: It is not correct to assume (as most scholars do) that mere availability of adequate substantive criminal law and the existence of a competent judiciary are enough factors to guarantee that the fight against impunity for crimes under international law can be realized by all domestic jurisdictions. The fact of the matter is that these are just two of three equally important pillars to fight impunity for such crimes at the national level. The third pillar is the national prosecutorial authority.212 In particular, three aspects of such an authority can be used to fight or perpetuate impunity. These are (i) its level of independence; (ii) the amount of discretionary powers it is vested with, and more importantly (iii) the manner in which such discretion is exercised.

This section outlines and comments on the foregoing three aspects in relation to the legal framework governing the prosecutorial function in Kenya. It takes into cognizance the fact that the litigation tradition in Kenya adheres to the common law adversarial system. Pursuant to this tradition, in any proceedings, including those in respect of a criminal trial, the judge, unlike the judge in the Romano-Germanic legal tradition, sits purely as an arbiter: he or she does not play any active role with regard to filing of charges; defining the scope of such charges; identifying the suspect to charge; or even deciding what evidence must be presented to court. These roles are exclusively left within the mandate of the prosecutorial office. Thus, the pivotal role of this office in the fight against impunity for the crimes related to the post-election violence cannot be over-emphasized.

4.4.1 Position Under the 1963 Constitution

Under the Constitution of Kenya of 1963, the state prosecutorial function was vested in the Attorney-General (AG),213 who was not only a political appointee of the President,214 but also an overall adviser of the government in all matters pertaining to law. Apart from this advisory role, the office of the AG was also responsible for handling all criminal cases and only those civil matters to which the government was a party. The DPP was subordinated to, and received instructions from, the AG as regards the handling of criminal cases. Thus, the AG had absolute, discretionary and broadly defined powers. Accordingly, if the AG considered it desirable, he had the absolute discretion to: (i) select a case to institute i.e., to decide who the defendant should be and the offence with which to charge him or her; (ii) to take over (i.e. “snatch”) and continue any case that had been instituted by a private prosecutor; and (iii) discontinue any case at any stage before judgment, including one which was being privately prosecuted.215

4.4.2 Current Position

The Constitution of Kenya of 2010 stripped the AG of the state prosecutorial powers and entrusted them exclusively to the DPP. More importantly, the new Constitution severed the link between the offices of the AG and that of the DPP, such that the DPP’s office is now an independently established constitutional office under Article 157(1) of the Constitution. Thus, currently, the office of the DPP is statutorily more autonomous than previously. In addition, the new Constitution contains important provisions which prima facie are aimed at enhancing the independence of the office of the DPP though minimization of political control. This manifests itself in the DPP’s appointment procedure, execution of duties and security of tenure. Independence of the DPP

The DPP is appointed by the President from a list of persons approved by the National Assembly, and who have the qualifications of a High Court Judge. DPP’s tenure of office is limited to only one eight-year term with no eligibility for re-appointment.216 Unlike previously where the DPP would require the consent of the Attorney-General to indict a person, the current Constitution clearly stipulates that the DPP “shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority”.217
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