“It’s dishonest to begin a conversation to address post-election violence, and then somewhere along the way we drop that issue and start addressing other issues like transnational crimes,” Mue said. “If we are to believe the DPP when he says the 4,000 cases cannot be prosecuted, then why are we setting up a system to address a problem that we’ve accepted that is unsolvable?”
The court can also try suspects in cases of piracy, terrorism, drug trafficking and other transnational crimes, although critics point out that Kenya already has courts empowered to try these crimes, and that using the ICD for this purpose would dilute the process of prosecuting the election violence crimes.
Samuel Kobia, a member of Kenya’s Judicial Service Commission who chairs the taskforce leading the process of setting up the ICD, has defended the plan to bring transnational crimes under the remit of the division. Speaking in The Hague late last year, he said there were too many such cases for the current court system to handle.
“After magistrates in Kenya said they were overwhelmed by the transnational cases, it was agreed the ICD will handle both,” he said.
George Kegoro, Executive Director of the Kenyan chapter of the International Commission of Jurists, said the lack of political will made it doubtful that the ICD would address electoral crimes. He pointed out that in September last year, both houses of parliament voted to pull the country out of the international treaty – the Rome Statute – that gives Kenya the international legislation to try such crimes.
“The government that is pushing for creation of the court is the same government that is pushing for withdrawal of Kenya from the Rome Statute upon which the court is to be operationalised,” Kegoro said.
(Bernard Koech contributed to this article which was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation).
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