The Republic of Kenya is located in the eastern part of Africa. By 2009 its population was approximately 40 million people, spread over a land area of 580,000 km².¹ Like people in other African countries, Kenyans identify themselves, inter alia, by their ethnic groups (tribes), whose total number is 42, and which are distributed unevenly across the country.² Before the introduction of the county administration system in 2010, the country was divided into eight geographical-cum-administrative regions called provinces, which were controlled directly by the central government from the capital city, Nairobi.³ In terms of economic development, Kenya is a developing country with the largest Growth Domestic Product (GDP) in Eastern and Central Africa (excluding Ethiopia), its capital city being the economic hub of the region.

Kenya was under effective British colonial rule between 1890 and 1963. The British colonialists introduced a settler economy which was accompanied by large-scale commercial farming.⁴ By 1950, the white population, mostly settler coffee and tea farmers, was 80,000.⁵ Today, the number of white population has dwindled, as most of the British settler farmers left after Kenya became independent. Until the general elections of 2007, which gave rise to the crimes dealt with in this book, Kenya had three presidents, the third of whom, Mwai Kibaki, was seeking re-election.

Crimes under international law differ from ordinary domestic crimes. Although some scholars argue that a precise definition of the former still remains controversial,⁶ it is clear that such a controversy, if any, does not extend to their distinguishing features. Scholars agree on at least three most important features that make a criminal conduct a crime under international law. Firstly, apart from entailing individual criminal responsibility, the criminalization and punishment of such conduct must, as a matter of principle, arise directly under international law. Secondly, the aim of such criminalization must be to protect the interests of not just one or a few states, but of the international community as a whole. Thirdly, the official position of perpetrators of such crimes must not exonerate them from individual criminal responsibility, even if their national jurisdictions would ordinarily avail them such a privilege.⁷

Four “core crimes under international law” are recognized as such, namely genocide, war crimes, crimes against humanity and aggression.⁸ This list presents the law as it stands today, but there is a possibility that it might be expanded in the future.⁹ The four core crimes are said to be “the most serious crimes of international concern”,¹⁰ because their effect not only transcends national boundaries, but also tends to threaten the peace, security and well-being of arguably the world as a whole.¹¹ In view of this, there is a global consensus that in the event that such crimes occur, the state on whose territory they are committed (state of commission) has a legal duty, arising directly under international law, to investigate, prosecute and punish the perpetrators.¹²

The duty to prosecute, which is imposed on the state of commission, exists alongside the right to prosecute availed to third states through universal jurisdiction. Pursuant to such a right, a third state may, in principle, prosecute a core crime even if it does not have any direct link with the perpetrator, the crime or the victims.¹³ The right to prosecute exists solely on the basis of the jus cogens (customary) nature of the core crimes,¹⁴ which makes them prosecutable by any state, irrespective of whether or not there is a treaty obligation to do so.¹⁵

Both the duty and the right to prosecute underscore one main point: impunity for the core crimes is not an option.¹⁶ In addition, the right to prosecute is intended mainly to play a curative role, namely to fill a foreseeable impunity gap; it seeks to ensure that if the state of commission ignores or fails to discharge its duty to prosecute, then any third state which is committed to international criminal justice is able to do so.

However, if history is anything to go by, it proves amply that there is no guarantee that the state of commission will always discharge its duty to prosecute. A lacuna may arise in any of the following three scenarios. First, the state of commission may simply ignore its duty to prosecute (inaction). Second, it may wish or even attempt to prosecute, but fails to do so due to its inability to conduct effective investigations and/or prosecutions (inability). Third, it may purport to investigate or prosecute, but prove to be unwilling to carry out genuine investigations or prosecutions, sometimes with the intention to shield the perpetrators (shielding). Similarly, both history and practice show that in these three scenarios, even universal jurisdiction may not always be a reliable tool to fill the resulting lacuna. The reason being that in most cases, third states do refrain from exercising their right to prosecute on account of, inter alia, diplomatic, political or practical considerations.¹⁷

If states fail or are unwilling to investigate and prosecute, there is a fallback: criminal accountability for at least those who bear the greatest responsibility for the core crimes can be sought before international courts and tribunals vested with jurisdiction. Currently, the most prominent institution vested with such jurisdiction is the permanent International Criminal Court (hereafter “the ICC” or “the Court”),¹⁸ a treaty-based court for which a Statute (hereafter “ICC Statute”) was adopted in 1998 and put to effect on 1 July 2002. The Court became fully operational in 2003.¹⁹

The ICC Statute reaffirms the duty of national jurisdictions to prosecute and punish the core crimes under international law, and reiterates that no impunity shall be tolerated in this regard.²⁰ As the Court officially commenced its activities, Luis Moreno-Ocampo, its first Chief Prosecutor, underscored the pivotal role of states in the fight against impunity with regard to these crimes through genuine utilization of their national courts. Ocampo stated that the ICC’s efficiency would not be measured by the number of cases it prosecutes, but rather by the number of cases it avoids due to the proper functioning of domestic legal systems.²¹ In line with this statement, the jurisdiction of the ICC is designed to be complementary (secondary) to that of national courts.²² This arrangement rightly makes the ICC “the ultimate executor of compliance to the duty to prosecute” and arguably “the main guarantor” of the same.²³

In summary, therefore, a principle of international customary law exists which requires that commission of any of the core crimes under international law must not go unpunished. Similarly, the avenues or forums in which criminal accountability for such crimes can be sought are clearly known and well established: In the first place, the state of commission is duty-bound to institute genuine prosecutions in its domestic courts, failing which last resort can be had to the ICC or to prosecution on the basis of universal jurisdiction.

One would expect that apart from their retributive purpose, the foregoing initiatives would have also the effect of deterring the commission of crimes under international law. However, gross human rights violations resulting in the commission of these crimes remain a serious problem currently, especially in Africa. In the recent past, following the establishment of the ICC, several African countries, including the Democratic Republic of the Congo, Central African Republic, Sudan, Ivory Coast, South Sudan, Nigeria, Mali, Libya and Egypt, have been affected by such violations in varying degrees.

Although most gross human rights violations in Africa have, in the past, been associated with civil wars, recent experience and trends show that terrorism and election-related violence are playing an increasing role. In addition, in some of the incidents where such violations occurred, particularly those related to election violence, both national and regional actors, including the African Union, have focused more on political solutions, including, for example, urging the formation of so-called “governments of national unity”.²⁴ In such cases, legal responses were not given priority, even where it was apparent that crimes under international law were or could have been committed. However, when similar gross human rights violations occurred in Kenya, an agreement was reached that both political and legal responses would be pursued. This created the immediate impression that perhaps a positive step in the right direction was being made.

The background is that from 30 December 2007 to 28 February 2008 Kenya was plunged into a widespread violence following a highly contested and controversial presidential election.²⁵ In the course of this violence (hereafter “post-election violence”), atrocities such as murders, rapes, inflictions of grievous bodily injury, forceful evictions, malicious destruction of property, arson, pillaging, etc., were committed.²⁶

A mediation process was carried out amidst the heightening violence (see infra Sect. 3.​3). As a result, five important agreements were signed between the contesting political parties. The first agreement, which was signed on 28 February 2008, concerned power sharing between the main contestants in the presidential election. This agreement de-escalated the violence immediately.²⁷ The second agreement pertained to the establishment of a commission of inquiry into the post-election violence which was mandated, inter alia, to identify and recommend “measures with regard to bringing to justice those persons responsible for crimes committed during the violence”.²⁸ The third agreement pertained to the formation of a truth commission to look into, among other things, the human rights violations that occurred during and beyond the violence.²⁹ The fourth agreement pertained to “long-term issues and solutions”, the most important issue being the creation of agencies for constitutional reforms and mechanisms for implementation of such reforms.³⁰ The fifth agreement related to the creation of an Independent Review Committee (IREC) to, among other things, do a review of the electoral legal framework and give recommendations for appropriate electoral reforms.³¹

The findings of the commission of inquiry formed pursuant to the second above-mentioned agreement suggested that gross atrocities constituting crimes against humanity had been committed. The commission gave, among others, two important recommendations on addressing criminal accountability in respect of those crimes. First, it identified the alleged main perpetrators and recommended that they be prosecuted by a local special tribunal that had to be created. Second, it recommended that should Kenya fail to prosecute the perpetrators domestically, then the intervention of the ICC would be invoked.

As the recommendation above had speculated, Kenya did not institute proceedings against the alleged main perpetrators within the set time frame. As a result, the commission of inquiry in conjunction with the mediators requested the ICC to intervene as it had been agreed.³² Thus, on 6 November 2009, the ICC became officially seized with the matter,³³ and subsequently, indicted six Kenyans for crimes against humanity. The then ICC Prosecutor Luis Moreno-Ocampo noted that the ICC’s intervention in Kenya was particularly important in order to “prevent the commission of [similar] crimes during the next elections.”³⁴

The Kenyan government was discontented with the intervention of the ICC and tried to halt the ensuing judicial process in at least four different ways. First, it made two unsuccessful attempts at requesting the United Nations Security Council to suspend the proceedings before the Court.³⁵ Second, it threatened to withdraw from the ICC Statute.³⁶ Third, it raised a legal challenge against the jurisdiction of the ICC over the alleged crimes, citing complementarity as a basis. This, too, failed. Fourth, it showed a keen interest in and actively pressed for the initiative to extend criminal jurisdiction to two regional courts in Africa, hoping that such a development would make the ICC “transfer” the cases back to Africa. This, too, did not work out.

Meanwhile, at the time of the post-election violence, Kenya had already ratified the ICC Statute, but was yet to domesticate it. Besides, the Kenyan government has not denied that crimes against humanity were or might have been committed on its territory during the violence. However, 6 years after the violence, Kenya has not instituted domestic proceedings against the alleged main perpetrators whose number is clearly more than the six suspects indicted by the ICC. Although the Kenyan Parliament blocked all attempts to create a local tribunal that would have prosecuted these perpetrators, it swiftly passed a law which established a truth commission with “non-retribution” as its main objective, and which contained some amnesty provisions.

Two main arguments have been advanced in the aftermath of the violence regarding Kenya’s failure to institute domestic proceedings against the main perpetrators. The first argument is that the Kenyan government lacked (and still lacks) a political will to investigate and prosecute the perpetrators. The second argument is that even if it was to be assumed that Kenya had wanted to prosecute the prosecutors, it would not have succeeded, because it lacked a sufficient legal framework. One view that emerged domestically soon after the end of the violence was that the Kenyan substantive criminal law as it stood at the time of commission of the crimes was inadequate for the prosecution of core crimes under international law. According to this view, even though a law was enacted a year after the violence to domesticate the ICC Statute, it would not have been legally possible to use that law retrospectively to prosecute the perpetrators. It was further argued that even if, for argument’s sake, one could assume that the existing Kenyan laws were sufficient, the Kenyan judicial institutions would still have been “unfit” to enforce such laws, the reason being that these institutions were not independent and credible enough to be entrusted with such a huge task. From these arguments, the predominant conclusion drawn was that the ICC or a tribunal which is completely independent of the Kenyan judicial system would be the best forum to address criminal accountability for the post-election violence.³⁷

Even though there were consistent calls made on Kenya to institute domestic proceedings, several influential people who were named by official reports as being the masterminds or sponsors of the violence continued serving in the Kenyan Parliament and others in the government as ministers or senior civil servants. This includes almost all the individuals who were officially indicted by the ICC. Thus, these individuals continued to have both direct and indirect influence in respect of key government actions, decisions and policies, including those pertaining to the search for criminal accountability for the crimes that they themselves were accused to have masterminded. The climax of all this, which brought in a completely new dimension, was reached in March 2013, when two among those Kenyans indicted by the ICC were elected Kenya’s President and Deputy President.