Rights groups in Kenya have warned of a potential miscarriage of justice after the government moved to have the cases of four people charged with crimes against humanity by the International Criminal Court (ICC) transferred to a region tribunal which has no experience in handling such crimes.
Two of the suspects, Deputy Prime Minister Uhuru Kenyatta and former higher education minister William Ruto, are likely candidates in a forthcoming presidential election. Together with former civil service chief Francis Muthaura and radio journalist Joshua Sang, they have been charged in connection with the widespread violence that claimed 1,300 lives and displaced some 600,000 people in the wake of the last presidential election in 2007.
The cases are being handled by the ICC because Kenya has failed to establish competent domestic judicial mechanisms.
“Post-election violence victims must receive substantive justice, but the current attempts to move these cases from the ICC is all meant to protect the four suspects at the expense of the victims,” Lawrence Mute, a commissioner with the Kenya National Commission on Human Rights, told IRIN.
On 26 April, 2012, the East African Legislative Assembly, during its fifth session held in the Kenyan capital Nairobi, endorsed a motion urging the ICC to transfer the cases to the East Africa Court of Justice (EACJ).
The tenth extraordinary session of the East Africa Community Summit, held on 28 April, 2012 in Arusha, Tanzania, resolved to extend the mandate of the EACJ to include crimes against humanity. The court’s mandate to date was to interpret the EAC protocol.
“Setting up the mechanisms, even if the mandate of the court is extended, will take years to conclude and will delay the cases,” Mute said.
The EACJ “has never handled cases of the magnitude of the ones facing the four individual Kenyans at the ICC. I don't think the [ICC] will be persuaded to move these cases there,” Judith Musembi, a lecturer of international law at the University of Nairobi, told IRIN.
Activists have also called for thousands of other crimes committed after the 2007 elections to be brought before the courts.
“There are thousands of suspects out there whose cases are not before the ICC, and the government, must as a matter of serving justice, set up local mechanisms to try them,” James Gondi, of the International Center for Transitional Justice, told IRIN.
“The women who were raped and people whose property were burnt want those who carried these out to face justice,” he added.
According to a recent report by Human Rights Watch, “The limited success of cases in the ordinary courts shows that Kenyan authorities have been unwilling or unable to effectively prosecute post-election violence.”
“In Uasin Gishu district, for instance, an epicenter of turbulence, no one has been convicted for at least 230 killings. The fact that not a single police officer has been convicted for shootings or rapes directly related to the post-election violence, despite an estimated 962 police shootings, 405 of them fatal, and dozens of reported rapes by police, also demonstrates the extent of impunity for certain groups that appear to be protected,” added the report, entitled Turning Pebbles.
In February 2012, the office of the Director of Public Prosecutions (DPP) set up a task force to expedite the prosecution of some 5,000 suspects.
“We are doing what we can, but we can’t charge people outside the law. We must gather evidence before we can haul people to court,” a senior legal officer in the DPP's office who sought anonymity, told IRIN.