, NAIROBI, Kenya, Jan 6 – Establishment of the International Crimes Division (ICD) of the High Court continues to spur debate as key stakeholders differ over its importance and viability.
Even as key stakeholders continue to look for common ground during a three-day conference going on in Naivasha, pertinent concerns have emerged over its composition and operation.
Deputy Solicitor General Muthoni Kimani on behalf of the Attorney General complained that the civil society has given Kenyans false hope in regards to the 2008 Post-Election Violence.
In her view, Kenya first has to consider if it has the required capacity and relevant legal backing that will ensure crimes committed during PEV are appropriately investigated and prosecuted.
“Before we undertake this process, certain issues must be considered. First of all, do we have the requisite resources to set up the requisite unit? The facilities and the skills to investigate and prosecute these crimes, have we customized and domesticated the rules the core legal statutes that are applied in the ICC, can we apply them as they are?” Muthoni queried.
She argued that drafters of the ICD and their intention for it to deal with PEV should consider the reality of the cases.
On Wednesday DPP, Keriako Tobiko said there are no prosecutable files due to insufficient evidence gathered by police.
According to Muthoni, those pushing for dispensation of PEV files have ignored the challenges faced in investigating the crimes committed.
“There is need for us to look at this matter and really look at what is exactly happening. What is the challenge that we face as a country? The DPP explained of difficulties of investigations that fall below international standards,” she asserted.
Muthoni argued that certain groups have elicited emotions and built up unnecessary excitement without looking at the viability of what they expect to be done.
“A lot of excitement comes from the civil society. In personal view we have given the citizens a false hope arising out of PEV that we are going to ensure the crimes against humanity which were committed will be tried,” she explained.
Rules of procedure on how the ICD will inherit cases already being investigated at the magistrates’ level was also another concern that Muthoni said should be discussed and resolved.
She expressed fears that without incorporating the legal basis and other administrative issues, the ICD could be challenged and its operations declared unconstitutional.
“You cannot set up the division without having a clear structure, setting it up without pre-requisite laws and administrative guide will be a difficult task because the division may be challenged even with a constitutional application,” she warned.
The ICD is modelled to handle complex transnational crimes such as terrorism, money laundering, maritime piracy, cyber crime, drugs, human and wildlife trophies trafficking. It is also being set up to deal with the 2007/2008 PEV.
It intends to have within it an independent prosecutor, special investigators and its own witness protection.