peaking during a stakeholders’ conference on the proposed ICD in Naivasha, Tobiko however raised concerns over the proposal to establish new units under the ICD, saying such are in existence already/FILE
Speaking during a stakeholders’ conference on the proposed ICD in Naivasha, Tobiko however raised concerns over the proposal to establish new units under the ICD, saying such are in existence already.
“It is proposed that the ICD should be modelled around the ICC (International Criminal Court) and other criminal tribunals, in other words, that it should be a self contained composite organ. My view on this is that it is absolutely unnecessary; you cannot replicate the international criminal tribunals or the ICC models in the guise of an ICD,” he asserted.
According to the DPP, Kenya had a chance to establish a tribunal modelled around the ICC and other international tribunal but this was lost after Parliament rejected the Special Tribunal Bill paving way for the ICC to investigate Kenya over the 2008 Post Election Violence (PEV).
The proponents of the ICD are seeking to have an independent prosecutor (who will not be answerable to the DPP), special investigators and a witness programme all under its umbrella.
However, according to Tobiko, such units are already in existence and furthermore given independence under Kenya’s Constitution.
In Article 157 of the Constitution of Kenya, the Office of the DPP is an independent office which, according to Tobiko, would be abused if the ICD will have an independent prosecutor who is not under his office.
“With respect, this proposal is at best a misnomer and at worst a constitutional fallacy. The ODPP is not any less independent than the proposed ICD or indeed the Judiciary as a whole. There is therefore no basis for the proposal to create a parallel Prosecution Office for the ICD,” he argued.
He explained that the Judiciary, like other constitutional offices, can establish a trial division of the High Court but cannot have its own OTP or its own investigating arm.
He explained to the stakeholders that his office had already established a specialised division and its members have been undergoing training on handling international crimes.
Tobiko also found it illogical that instead of strengthening existing organs, the Judiciary was creating new offices amidst reported incapacitation of his office and other offices like the police.
“There is therefore no basis for the proposal to create a parallel prosecution office for the ICD. What we should be concerned about is the specialisation, skill, competencies and capacity required of the Prosecutors appointed by the DPP to prosecute cases before the ICD,” he explained.
Tobiko further raised concerns that the term of transnational crimes was not well defined legally and warned that it was likely to get complicated in case of emergence of new border crimes not envisaged in the current description.
He also raised concerns over how the ICD which will be located in Nairobi, will handle cases originating from lower courts spread across the country.
He was concerned that the centralisation of the court may lead to delay of court processes and also backlog which is already a challenge for the Judiciary.
“The subordinate courts are distributed across the country. What would be the implication on the speedy dispensation of justice if those crimes are transferred to the ICD which as is proposed would be composed of a panel of only seven judges?” Tobiko queried.
The ICD, once established, is supposed to take up ‘complex’ transnational crimes that cannot be concluded by magistrates’ courts which are currently handling such cases.
Tobiko was concerned that the ICD will require amendments and formulation of laws to give it a clear process to ensure its actions do not contradict the constitution and also rights of accused persons.
High Court Judge Richard Mwongo, in echoing the need for new legislation, also asked what process will be used to transfer cases from magistrates’ court to the High Court without infringing on rights of the accused who would have otherwise had three chances of appeal without the ICD.
He said the stakeholders have to decide which laws will be amended or made to show how cases will be moved from one court to another without stepping on existing laws.
Apart from dealing with transnational crimes, the ICD is also supposed to open prosecutions of the 2008 PEV files which according to Tobiko will not be possible.
He explained of the 4,000 files reviewed by the Multi-Agency Task Force on PEV, none of them is prosecutable due to lack of evidence.
“The sad and painful truth therefore is that at present there are no cases arising out of the 2007/08 PEV that can be prosecuted before the ICD,” he said.
Deputy Chief Justice Kalpana Rawal said that stakeholders attending the three day workshop will evaluate the proposal to establish the ICD and also deliberate on pertinent concerns raised by the multi-agency partners.
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