Sosteness Francis Materu (Auth.) - The Post-Election Violence in Kenya - Domestic and International Legal Responses

International Criminal Justice Series Volume 2
The Post-Election
Violence in Kenya
Domestic and International
Legal Responses
Sosteness Francis Materu

International Criminal Justice Series
Volume 2
Series editors
Gerhard Werle, Berlin, Germany
Lovell Fernandez, Bellville, South Africa
Moritz Vormbaum, Berlin, Germany (Managing Editor)
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The Post-Election Violence

in Kenya
Domestic and International Legal Responses
13
Faculty of Law
University of Dar es Salaam
Dar es Salaam
Tanzania
ISBN 978-94-6265-040-4 ISBN 978-94-6265-041-1 (eBook)

DOI 10.1007/978-94-6265-041-1
Library of Congress Control Number: 2014954347
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To my parents, Francis Mlang’a Materu (R.I.P.)
and Melania Msise Materu,
and
my siblings
Foreword
Although a familiar fixture for many of us, the nascency of the International
Criminal Court (ICC) must be continually brought to our forethoughts. While it
may stand alone as the world’s only permanent international criminal tribunal, it
stands there on the footing provided by all attempts to meet power with law and
mete out a justice that ensures victims are entitled to see perpetrators brought to
book, regardless of stature and position. That the ICC exists is an achievement of
monumental importance; that the early years of the ICC have perhaps raised more
questions than answers should equally be expected.
The Court’s evolution will include steps forward, sideways, and every which
way, as it encounters novel situations as a novel institution. The Court is in this
Heraclitean dance with its partners: States Parties that have signaled to the world
their rejection of impunity, those that participate from the sidelines, and those
that may seek to undermine its operation. Each step yields a new understand-
ing at every move, encountering new challenges and possibilities, undergirded
by the promise of constant change. With one of the first contemporaneous stud-
ies of Kenya and its own fraught, ever-changing dance with the ICC, Sosteness
Francis Materu gives us a lens to examine not only issues of importance to Kenya
and Kenyans, but to all those with an eye on the Court and its relationships in the
world, the region, and within itself.
As readers and learners, we glean many benefits from the author’s own posi-
tioning. He is a highly skilled and qualified academic. I learned this first-hand
through our interactions at the South African-German Centre for Transnational
Criminal Justice, a partnership between the University of Western Cape in Cape
Town and the Humboldt University in Berlin, where he was a student. This Centre
supports the exploration of emerging transnational criminal issues from both
African and International perspectives, an embrace that shines through in the
author’s own work.
The author displays a systematic approach to teasing apart the many fac-
ets of the issues in the Kenyan situation. While he offers a historically grounded
socio-political analysis of the post-election violence that engulfed Kenya as 2007
became 2008, his study never loses sight of the procedural and substantive legal
vii
viii Foreword
issues within Kenya and the ICC. He draws out the tensions in the evolution of
accountability for international crimes, and, while maintaining distinctly national
focus, is still able to highlight the overarching challenges of meeting power with
law in a world of multi-level jurisdictions. He does all of this in a well-structured
manner that is accessible for practitioners, academics, and those interested more
broadly in the issues under study.
As he guides us first through the post-colonial genesis of fault lines in the
Kenyan society and the dangers of imperial presidencies, we see how recurring
episodes of unpunished electoral violence and a culture of impunity bred condi-
tions ripe for exploitation. As Kenyans and the world watch the convulsions run
across the country in the wake of the 2007 elections, there was also a belief, how-
ever tenuous, that the domestic system may yield the promised outcomes of justice
and reconciliation. Materu neither holds false hope nor unwarranted cynicism for
the restorative justice mechanisms that were brought in alongside the importance
of recognizing the need for retributive justice in the agreements that flowed from
the Kenyan National Dialogue and Reconciliation. The author shows us though
that even the most promising attempts at creating a roadmap for accountability
within Kenya were bedeviled by local politics. Again, we are returned to the per-
sistent challenge of law meeting intransigent power.
Though Materu’s analysis concludes there was the technical ability of the
domestic Kenyan legal system to confront the crimes, he demonstrates the impos-
sibility of that happening in the post-violence context. As his analysis moves to
Kenya’s dance with the ICC, which was initiated by the Prosecution’s first exer-
cise of the Office’s proprio motu powers, we see how unwelcoming of a partner
Kenya had become. Kenya’s various attempts at ousting the Court’s exercise of its
complementarity jurisdiction are set out and examined, showing how a once will-
ing state can foment discontent with institutions internally and regionally.
The Court’s own engagement with the case quickly showed again the novelty
of the situation. The Rome Statute’s treatment of the contextual elements of crimes
against humanity has given rise to divisive interpretations, no more clear than in
the Kenyan cases. From the minority, we received the counterpoint to Pre-Trial
Chamber II’s majority both in authorizing the investigation into the situation in
Kenya and subsequently their confirmation of charges against four of the origi-
nal six who stood accused. As the author sets out, when examining the contested
element of what constitutes “a State or organizational policy” from the minority
we received an interpretation focused on the nature of the entity, an account that
hues closer to our historically informed sense of international crimes. From the
majority we get what Materu describes as a forward-looking account of the nature
of crimes against humanity, one that focuses on the capacity of a group to com-
mit heinous crimes and that appreciates the dynamic evolution of criminal actors.
For a permanent institution, the author implores us to adopt this latter view and
sets out cogent reasons for doing so. His legal analysis does not stop there and
his treatment of the issues that have arisen in this situation continues to reflect his
appreciation for the interplay between local, regional, and international regimes
and actors.
Foreword ix
At a time when the ICC is being critiqued from multiple angles, Materu’s
account helps us locate the institution’s strengths and weaknesses. His treatment of
the dance between the Court and Kenya is informed and balanced; neither escapes
criticism. His recognition of the local limits for obtaining justice in Kenya should
be a sound reminder to the Court’s critics that it has a role to play and should be
supported in bringing voice to victims of atrocities regardless of where they find
themselves.
Berlin, Summer 2014 Prof. Dr. h.c. mult. René Blattmann

Visiting Professor,
Humboldt-Universität zu Berlin
Former Vice-President and Judge,
International Criminal Court
Acknowledgements
The research leading to this book was supported by the Deutscher Academischer
Austausch Dienst (DAAD) with funds from the Federal Foreign Office of
Germany. It was conducted under the auspices of the South African German
Centre for Transnational Criminal Justice based on cooperation between the
University of the Western Cape and Humboldt University of Berlin. I am very
grateful to the DAAD and the Federal Foreign Office of Germany for this gener-
ous financial support. In addition, I owe a debt of gratitude to the following people
whose contributions made this project a success.
My heartfelt gratitude goes to all the members of the South African German
Centre for their support. I thank Professor Gerhard Werle of Humboldt University
and Director of the Centre, who provided the main intellectual guidance through-
out the research process. His trust and encouragement made me work harder and
more enthusiastically to complete the project. Professor Lovell Fernandez of the
University of the Western Cape and Co-director of the Centre provided intel-
lectual advice on part of my research. He also assisted unreservedly in the final
editing of the manuscript. Dr. Moritz Vormbaum, who is the Coordinator of the
Centre, extended warm cooperation throughout my affiliation to the Centre. Anja
Schepke from the Chair of Professor Werle at Humboldt University provided
excellent administrative support that enabled my research to proceed smoothly.
She diligently ensured that the research funds were secured and remitted to me
both timely and conveniently. During my research stays in Berlin, she ensured
that a decent and affordable accommodation was secured for me. Hazel Jeftha and
Farieda Hendricks from the University of the Western Cape provided their invalu-
able administrative support during my research stays in Cape Town.
I am grateful to Professor Florian Jeßberger of Hamburg University and to
Dr. Boris Burghardt, Senior Research Fellow at the Chair of Professor Werle
at Humboldt University, for their useful insights into my research. Professor
Palamagamba John Kabudi, former Dean of the Law Faculty, University of Dar
es Salaam, deserves my sincere thanks. He not only encouraged me to seize the
research opportunity at the South African German Centre, but also ensured that
xi
xii Acknowledgements
my employer, the University of Dar es Salaam, granted me a study leave for that
purpose. I am also very grateful to Judge René Blattmann who, on a short notice,
agreed to sacrifice his valuable time to write the Foreword.
I would like to thank my dear mother, siblings, relatives and friends for their
constant love and support. I also thank my colleagues Dr. Juliet Okoth, Dr. Daniel
Leslie, Dr. Charity Wibabara, Windell Nortje, Jean Phillipo, Marshet Tessema,
Zainabu Mango, Arnold Gessase and Fatuma Silungwe for the moments and time
we shared and spent together in Berlin and Cape Town as researchers affiliated to
the South African German Centre. I thank Aziz Epik and Janosch Kunner from the
Chair of Professor Werle for their cooperation in Berlin.
My very special thanks go to the staff of T.M.C. Asser Press and Springer for
the cooperation extended to me throughout the publication process. I particularly
thank Philip van Tongeren, Antoinette Wessels and Marjolijn Bastiaans in this
regard.
Above all, I thank the Almighty God for His constant love and blessings. To
Him be all the glory.
Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Preliminary Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Setting the Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Objectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.4 Chapters Outline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Part I Historical Roots of Ethnic Violence in Kenya
2 Background to the Post-Election Violence . . . . . . . . . . . . . . . . . . . . . . . 15

2.1 Introductory Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.2 Historical Role of Negative Ethnicity in Kenyan Politics . . . . . . . . . 17
2.2.1 Transition from Colonialism to Independence. . . . . . . . . . . . 17
2.2.2 The Regionalism and Centralism Ideologies. . . . . . . . . . . . . 19
2.3 The Rise of Monopartysm and Consolidation of Dictatorship. . . . . . 21
2.3.1 From De Jure Multipartysm to De Facto Monopartysm. . . . 21
2.3.2 Emergence of Factions Within KANU (1964–1966). . . . . . . 22
2.3.3 Suppression of Opposition Parties (1966–1982). . . . . . . . . . 23
2.3.4 From Kenyatta to Moi: Tyrannical Rule Consolidates. . . . . . 23
2.4 Resumption of Political Pluralism and Proliferation
of Political Alliances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.4.1 Resumption of Multipartysm. . . . . . . . . . . . . . . . . . . . . . . . . 26
2.4.2 Politics of Alliances and Party Hopping. . . . . . . . . . . . . . . . . 27
2.5 Criminal Gangs, Election Violence and Impunity. . . . . . . . . . . . . . . 34
2.5.1 Use of Criminal Gangs for Political Purposes. . . . . . . . . . . . 34
2.5.2 Trends of Election Violence. . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.5.3 Commissions of Enquiry and Culture of Impunity . . . . . . . . 38
2.6 Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
xiii
xiv Contents
Part II Post-Election Violence, Domestic Legal Options and Responses
3 The Post-Election Violence and Immediate Aftermath. . . . . . . . . . . . . 47

3.2 The Violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
3.2.1 Immediate Trigger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
3.2.2 Extent, Organization and Nature . . . . . . . . . . . . . . . . . . . . . . 50
3.2.3 Incitement to Violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3.3 Mediation Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
3.4 Inquiries into the Violence and Road Map for Criminal
Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3.4.1 Commission of Enquiry into the Post-Election Violence. . . . 57
3.4.2 Other Inquiries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
3.4.3 Findings of the Inquiries: Were Crimes Under
International Law Committed?. . . . . . . . . . . . . . . . . . . . . . . . 59
3.4.4 Agreement and Recommendations Pertaining
to Criminal Accountability. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3.5 The Proposed Special Tribunal for Kenya: An Overview . . . . . . . . . 66
3.5.1 Salient Features of the Tribunal. . . . . . . . . . . . . . . . . . . . . . . 67
3.5.2 Evaluation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
3.5.3 Failed Attempts to Establish Special Tribunal. . . . . . . . . . . . 72
3.6 Consequences of Failure to Create the Proposed Special Tribunal . . . 74
3.7 Where to Prosecute the Big Fish? General Domestic Perceptions. . . 75
3.8 Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
4 Criminal Accountability at Domestic Level . . . . . . . . . . . . . . . . . . . . . . 85

4.2 Legal Position Regarding Enforceability of Core Crimes in Kenya. . . 86
4.3 Alternative Legal Frameworks for Domestic Prosecution
of Crimes Linked to the Post-Election Violence . . . . . . . . . . . . . . . . 89
4.3.1 Prosecuting as Domestic “Ordinary” Crimes. . . . . . . . . . . . . 89
4.3.2 Prosecuting as Crimes Against Humanity as Such. . . . . . . . . 115
4.4 Issues Relating to Exercise of State Prosecutorial Function . . . . . . . 129
4.4.1 Position Under the 1963 Constitution . . . . . . . . . . . . . . . . . . 129
4.4.2 Current Position. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
4.4.3 Interim Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
4.5 Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Contents xv
5 Alternatives and Adjuncts to Domestic Prosecutions . . . . . . . . . . . . . . 141

5.2 Transitional Justice in Kenya Through a Truth Commission. . . . . . . 143
5.2.1 Prelude to Truth Commissions. . . . . . . . . . . . . . . . . . . . . . . . 143
5.2.2 Introduction to the Kenyan Truth, Justice
and Reconciliation Commission. . . . . . . . . . . . . . . . . . . . . . . 144
5.2.3 Analysis of TJRC’s Mandates Vis-a-Vis Criminal
Accountability for the Post-Election Violence. . . . . . . . . . . . 150
5.3 Vetting of Judges and Magistrates. . . . . . . . . . . . . . . . . . . . . . . . . . . 168
5.4 Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Part III International Responses
6 The Kenya Situation Before the ICC. . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

6.2 Issues Relating to Trigger of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . 179
6.2.1 Proprio Motu Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 179
6.2.2 The Waki Commission on Trigger Mechanism. . . . . . . . . . . 181
6.2.3 Responses of ICC Prosecutor and Kenyan Government
to Trigger Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
6.3 Issues Relating to Parameters of ICC’s Investigation . . . . . . . . . . . . 185
6.3.1 Temporal Scope of Investigation. . . . . . . . . . . . . . . . . . . . . . 186
6.3.2 Subject-Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 191
6.3.3 Locating Crimes in Mount Elgon Area in the Investigation. . . 192
6.4 Issues Relating to Substantive Criminal Law. . . . . . . . . . . . . . . . . . . 194
6.4.1 Prosecutorial Discretion Vis-a-Vis Scope of Charges . . . . . . 195
6.4.2 Whether Acts Committed During Post-Election
Violence Amounted to Crimes Against Humanity. . . . . . . . . 200
6.5 Issues Relating to Complementarity . . . . . . . . . . . . . . . . . . . . . . . . . 216
6.5.1 Meaning of Complementarity . . . . . . . . . . . . . . . . . . . . . . . . 216
6.5.2 Evaluation of “Unwillingness” and “Inability”
in Relation to Kenya. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
6.5.3 Inaction as a Component of Complementarity. . . . . . . . . . . . 219
6.6 Other Responses to ICC’s Intervention . . . . . . . . . . . . . . . . . . . . . . . 230
6.6.1 Attempts to Have the Cases Deferred Under Article 16. . . . . 231
6.6.2 Attempts to Resort to Regional Criminal Jurisdictions. . . . . 234
6.6.3 Threats to Withdraw from the ICC Statute. . . . . . . . . . . . . . . 237
xvi Contents
6.7 The Future of the Kenyan Cases at the ICC. . . . . . . . . . . . . . . . . . . . 240

6.7.1 Election of the ICC Suspects to Presidency. . . . . . . . . . . . . . 241
6.7.2 The Integrity Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
6.7.3 Cooperation from the Kenyan Government. . . . . . . . . . . . . . 247
6.7.4 ICC’s Relationship with the AU in View of the
Kenyatta and Ruto Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
6.7.5 Interim Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
6.8 Impact of the ICC’s Intervention in Kenya . . . . . . . . . . . . . . . . . . . . 254
6.9 Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
7 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Abbreviations and Acronyms
AC Appeals Chamber
AG Attorney General
Art(s) Article(s)
ASP Assembly of States Parties
AU African Union
Cap. Chapter
CCL Control Council Law (No. 10)
Cf. Compare (confer)
CORD Coalition for Reforms and Democracy
DPP Director of Public Prosecutions
EAC East African Community
EACJ East African Court of Justice
ECOWAS Economic Community of West African States
ed(s). Editor(s)
edn. Edition
EJIL European Journal of International Law
eKLR Electronic Kenya Law Reports
et al. and others (et alii)
et seq. and the following (et sequens; et sequentes)
G.N Gazette Notice
i.e. that is (id est)
ibid. in the same place (ibidem)
ICC International Criminal Court
ICD International Crimes Division
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for (the Former) Yugoslavia
IMT International Military Tribunal (at Nuremberg)
KADU Kenya African Democratic Union
KANU Kenya African National Union
KNDR Kenya National Dialogue and Reconciliation
LDP Liberal Democratic Party
xvii
xviii Abbreviations and Acronyms
MP(s) Member(s) of Parliament

NAK National Alliance (Party) of Kenya
NDP National Development Party
NGO Non-governmental Organization
ODM Orange Democratic Movement
OTP Office of the Prosecutor (of the ICC)
p, pp page(s)
para(s) paragraph(s)
PNU Party of National Unity
PTC Pre-Trial Chamber
R.E Revised Edition (of the laws of Kenya)
s, ss. section(s)
SCSL Special Court for Sierra Leone
TC Trial Chamber
TJRC Truth, Justice and Reconciliation Commission (Kenya)
TRC Truth and Reconciliation Commission
UN United Nations
Chapter 1
Introduction
Abstract This chapter introduces the study and gives its general overview. It
starts by situating the study within the context of the “duty to prosecute”, being
the basis for prosecuting crimes under international law allegedly committed in
Kenya. The chapter also presents the background to the research problem, the
objectives of the study and the outline of the book.
Contents
1.1 Preliminary Remarks........................................................................................................... 1
1.2 Setting the Context............................................................................................................... 2
1.3 Objectives............................................................................................................................. 8
1.4 Chapters Outline.................................................................................................................. 9
References................................................................................................................................... 10
1.1 Preliminary Remarks
The Republic of Kenya is located in the eastern part of Africa. By 2009 its popula-
tion was approximately 40 million people, spread over a land area of
580,000 km2.1 Like people in other African countries, Kenyans identify them-
selves, 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
1 See Kenya National Bureau of Statistics 2010, p. 20.

2 See Jonyo 2003, p. 166.
3 These are Nairobi, Nyanza, Eastern, Western, Coast, North-Eastern, Rift Valley and Central
Provinces.
© t.m.c. asser press and the author 2015 1

S.F. Materu, The Post-Election Violence in Kenya,
International Criminal Justice Series 2, DOI 10.1007/978-94-6265-041-1_1
2 1 Introduction
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 had three presidents, the third of whom, Mwai
Kibaki, was seeking re-election.
1.2 Setting the Context
Crimes under international law differ from ordinary domestic crimes. Although
some scholars argue that a precise definition of the former still remains controver-
sial,6 it is clear that such a controversy, if any, does not extend to their distinguish-
ing features. Scholars agree on at least three most important features that make a
criminal conduct a crime under international law. Firstly, apart from entailing indi-
vidual 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 geno-
cide, 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
4 Library of Congress 2007, p. 2.

5 Jonyo 2003, p. 166.
6 See, e.g., Naqvi 2009, p. 21; Wouters 2005, pp. 17 et seq.
7 Bassiouni 1986, p. 2; Cassese 2008, pp. 11–13; Damgaard 2008, pp. 56–60; Naqvi 2009,
pp. 21–24; Schabas 2007, pp. 82–83; Werle 2009, p. 29.

8 See Article 5 of the Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July
1998 (hereafter “ICC, Statute”). See also Cassese 2008, pp. 11–13; Damgaard 2008, pp. 56–85;
and Werle 2009, p. 29.
9 See, e.g., ICC Statute, Article 123; Bassiouni 1986, pp. 1–2 (arguing that there are 22 “inter-
national crimes” in total). For more details see Triffterer 2008, pp. 40 and 59; and Zimmermann
2008, pp. 98–103.
1.2 Setting the Context 3
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 jurisdic-
tion. 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 (cus-
tomary) 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 guaran-
tee 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
10 ICC Statute, Preamble para 4 and Article 1.

11 ICC Statute, Article 5 and Preamble, para 3; Werle 2009, p. 31.
12 See Human Rights Watch 2009, pp. 10–17; International Committee of the Red Cross 2005;
Jeßberger 2007, pp. 213–22; Scharf 1996, pp. 1 et seq.; Tomuschat 2002, pp. 315 et seq.; Werle
2009, pp. 69–70. On how the duty to prosecute is extended to third states by the principle of aut
dedere aut judicare (prosecute or extradite), see generally Bassiouni and Wise 1995.
13 Werle 2009, p. 64. See also generally Macedo 2004.
14 Article 53 of the Vienna Convention on the Law of Treaties of 1969 defines a jus cogens as a
“peremptory norm of general international law … from which no derogation is permitted”.

15 Bassiouni 1996, p. 63 (noting, inter alia, that the jus cogens status of international crimes con-
stitutes obligations erga omnes (owed to all mankind) which are non-derogable). See also Obura
2011, pp. 13–14.
16 Cf. May 2005 (giving a theoretical and philosophical justification on why third states and inter-
national tribunals must exercise jurisdiction over jus cogens crimes when the state of commission
fails or is unwilling to do so).
4 1 Introduction
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 opera-
tional 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
17 Cf. Bassiouni 2001, pp. 81 et seq.; Macedo 2004, p. 44, Kissinger; 2001, pp. 86–96; and
Werle 2009, pp. 67–68. A clear example of how sceptical the policies of states are with regard
to the exercise of universal jurisdiction is to be found in State’s argument in the judgment of the
High Court of South Africa: Southern African Litigation Centre and Another v. The South African
National Director of Public Prosecutions and Three Others, 8 May 2012, pp. 25–27. Also see the
subsequent judgment of the South African Supreme Court of Appeal: National Commissioner of
the South African Police and another v. Southern Africa Litigation Centre and others (485/2012)
[2013] ZASCA 168 (27 November 2013). For critical analysis of these judgments see Kemp
2014; Werle and Bornkamm 2013, pp. 659 et seq.
18 ICC Statute, Article 5(1). However, with regard to the crime of aggression, the ICC will only
be able to exercise jurisdiction after 2017 upon meeting the specific conditions stipulated under
Article 5(2) of the ICC Statute read together with Article 15 bis adopted in the first amendment to
the Statute in 2010. For more details see Ambos 2010, pp. 463 et seq.; Clark 2009, pp. 1103–1115
and Manson 2010, pp. 417–443.
19 For more information see “ICC at a glance” http://www.icc-cpi.int/en_menus/icc/about%20
t h e % 2 0 c o u r t / i c c % 2 0 a t . % 2 0 a % 2 0 g l a n c e / Pa g e s / i c c % 2 0 a t . % 2 0 a % 2 0 g l a n c e . a s p x .
Accessed September 2014 See also Werle 2009, pp. 20–25.
20 The Statute provides that in order to “put an end to impunity for perpetrators of these crimes
and thus contribute to the prevention of such crimes…effective prosecution must be ensured
by taking measures at national level”. And therefore, “it is a duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes”. See ICC Statute, Preamble,
paras 4, 5 and 6.
21 See Statement given at the ceremony for the solemn undertaking of the Chief Prosecutor of
the ICC (June, 16 2003), p. 2 http://www.iccnow.org/documents/MorenoOcampo16June03.pdf.

Accessed August 2014.
22 See infra Sect. 6.5.
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 account-
ability 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 prosecu-
tions 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 ini-
tiatives would have also the effect of deterring the commission of crimes under
international law. However, gross human rights violations resulting in the com-
mission of these crimes remain a serious problem currently, especially in Africa.
In the recent past, following the establishment of the ICC, several African coun-
tries, 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 vio-
lence, 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 viola-
tions 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 contro-
versial presidential election.25 In the course of this violence (hereafter “post-elec-
tion 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 contest-
ing political parties. The first agreement, which was signed on 28 February 2008,
23 Valinas 2010, p. 269. Cf. Laplante 2010, p. 636.

24 See generally Chigora and Guzura 2011; Mapuva 2013.
25 BBC News, 31 December 2007.
26 See Internews 2010 https://internews.org/sites/default/files/resources/2010-05_Kenya_ICC_5-
Page_Briefing.pdf. Accessed September 2014.

6 1 Introduction
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 proceed-
ings 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
27 See Kenya National Dialogue and Reconciliation 2008a.

28 See Kenya National Dialogue and Reconciliation 2008b.
29 See Kenya National Dialogue and Reconciliation 2008c.
30 See Kenya National Dialogue and Reconciliation 2008d.
31 See Kenya National Dialogue and Reconciliation 2008e.
32 See ICC Press Release ICC-OTP-20090709-PR436, 9 July 2009.
33 See Decision Assigning the Situation in Kenya to Pre-Trial Chamber II, ICC-01/09-1,
6 November 2009.
34 ICC Press Release ICC-OTP-20090716-PR439, 16 July 2009.
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 per-
petrators. 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 prose-
cutors, it would not have succeeded, because it lacked a sufficient legal frame-
work. 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 vio-
lence 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 credi-
ble enough to be entrusted with such a huge task. From these arguments, the pre-
dominant 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
35 See infra Sects. 6.6.1 and 6.7.4.

36 See Daily Nation, 22 December 2010. A Motion to withdraw from the Statute was presented
to the Parliament by Isaac Ruto (MP) on Thursday December 16, 2010. See Parliament of Kenya
2010, pp. 30 et seq.; For further discussion see infra Sect. 6.6.3.
37 See Asaala 2010, pp. 377–406; Asaala 2012, pp. 119–143; Gathii 2010; Mohochi 2011;
Musila 2009, pp. 445 et seq.; Nmaju 2009, pp. 78 et seq.; Okuta 2009, pp. 1063 et seq.; Sing’Oei
2010, pp. 5 et seq.
8 1 Introduction
Even though there were consistent calls made on Kenya to institute domes-
tic 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.
Moreover, since the ICC started exercising its jurisdiction over the Kenyan cases,
several issues of interest, some of which entailing contentious legal issues, have
emerged. The most contentious legal issue which deserves a mention at this stage
emerged at the very inception of the ICC process, and for the first time in the juris-
prudence of the ICC. It concerned the interpretation of the definitional elements of
crimes against humanity under Article 7(2)(a) of the ICC Statute, namely the phrase
“State or organizational policy”. A serious disagreement arose over whether this def-
initional threshold was met with regard to the criminal acts that occurred in Kenya
so as to justify the ICC’s intervention. In the end, both the judges of the ICC’s Pre-
Trial Chamber and scholars were left fundamentally divided (see infra Sect. 6.4.2.3).
The ensuing debate38 is far from settled, and this book adds more thoughts to it.
Apart from the legal issues that have arisen out of the ICC’s proceedings,
much more happened outside the courtroom. Most importantly, the fact that the
ICC continued to exercise jurisdiction in respect of the persons who are now
the Kenyan President and Deputy President fuelled a pre-existing “hostility” of the
African Union (AU) towards the ICC, thereby compounding the perception held
by the AU that the ICC is “targeting” African leaders.
1.3 Objectives
In view of the foregoing background, there is a need to take stock of what tran-
spired during the post-election violence in Kenya and how the question of criminal
accountability for the alleged crimes against humanity has been dealt with so far,
both at the national and international level. In addition, there is a need to clarify a
number of issues, ranging from socio-political and historical issues related to the
violence; controversies, allegations, perceptions and demands which have arisen
so far in connection with the ICC’s intervention in Kenya. More importantly, there
is a need to clarify and analyse the main legal issues and options arising at both
38 See, e.g., Halling 2010, pp. 827 et seq.; Hansen 2011, pp. 1 et seq.; Kress 2010, pp. 855
et seq.; Werle and Burghardt 2012, pp. 1 et seq.

1.3 Objectives 9
the domestic and international level in relation to accountability for the post-elec-
tion violence. The main aim of this book is to carry out this task. It will do so by
seeking to answer the following specific questions:
• To what extent is Kenya’s political and historical background linked to the
2007–2008 post-election violence, and how has this background affected or
how is it likely to affect the efforts to ensure criminal accountability for the
alleged crimes against humanity?
• Pursuant to the agreed road map for domestic criminal accountability for the
crimes linked to the violence, and in view of the currently available domestic
legal framework, to what extent has Kenya discharged and can still discharge its
duty to prosecute those who bear greatest responsibility for the crimes?
• To what extent are the non-prosecutorial mechanisms adopted in response to
the post-election violence consistent with Kenya’s duty to punish the alleged
crimes against humanity? And given their design, could these mechanisms ulti-
mately affect the search for criminal accountability for those responsible for the
crimes?
• To what extent was the ICC’s intervention justified, and what are the main legal
issues of jurisprudential significance that have so far emanated from the Kenyan
cases before the ICC?
1.4 Chapters Outline
To achieve the objectives above, the book is organised into seven chapters.
Apart from Chapter 1, which introduces the book and gives its general o verview,
Chapter 2 presents a concise political, sociological and historical background of the
Kenyan politics prior to 2007. This chapter is meant to give the reader the impres-
sion of how the post-election violence links to Kenya’s recent history. It also
prepares the ground for understanding that such historical background has had
a spill-over effect with regard to how Kenya has so far acted at the national level
with regard to criminal accountability for the alleged crimes against humanity.
Chapter 3 is devoted for the post-election violence, describing its immediate
trigger, patterns, magnitude and associated crimes. It also discusses the mediation
process, focusing mostly on the political settlement, the agreed road map towards
criminal accountability, the failed attempt to implement the road map and the con-
sequences of such failure. Lastly, the chapter presents the general perception of
Kenyans about the appropriate place or forum to prosecute the perpetrators.
Chapter 4 discusses the legal options for ensuring criminal accountability at
the domestic level. It analyses Kenya’s substantive criminal law as it stood at the
time of commission of the alleged crimes against humanity and subsequent to their
commission, with a view to establishing whether this legal framework could be
used as an effective tool to prosecute the alleged crimes against humanity, tak-
ing into consideration the principle of legality, which prohibits imposition of
10 1 Introduction
retrospective punishment. In addition, the chapter examines to what extent Kenya

has actually prosecuted the crimes under the available domestic legal framework;
and whether by doing so Kenya can be said to have fulfilled its duty to prosecute
those who bear major responsibility for the crimes.
Chapter 5 explores the alternatives and adjuncts to domestic prosecutions, with
particular emphasis on the Kenyan truth commission. It outlines the background of
the commission, its creation, composition and mandates, but the main focus is on
the relationship between the commission and criminal accountability for the post-
election violence. The chapter studies the relationship between the commission
and the domestic judicial institutions, specific focus being on how such a relation-
ship could impair or foster domestic criminal accountability for the alleged crimes.
Chapter 6 concerns the prosecution of the alleged crimes against humanity at
the ICC level. It analyses the Kenya situation before the ICC, and covers selected
legal issues of procedural and substantive nature arising from the pre-trial phase
of the proceedings. These include, but are not limited to, the trigger mechanism,
complementarity, and more importantly, the Pre-Trial Chamber’s interpretation
of the definitional elements of crimes against humanity under the ICC Statute.
Other issues covered include the impact of the ICC’s intervention on Kenya’s 2013
general elections; the implications of the outcome of the 2013 presidential elec-
tion on the ICC legal process; and the African Union’s position with regard to the
ICC’s prosecution of Kenya’s serving head of state and his deputy.
Lastly, Chapter 7 concludes with a summary of the book.
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spectives of international criminal justice. T.M.C. Asser Press, The Hague
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ment of the North Gauteng High Court in SALC v. National director of public prosecutions. J
Int Crim Justice 11(3):659–675
Werle G, Burghardt B (2012) Do crimes against humanity require the participation of a state or a
“State-Like” organization? J Int Crim Justice 9:1–20
Wouters J (2005) The obligation to prosecute international law crimes. The need for justice and
requirements for peace and security, Collegium, 32nd edn. College of Europe, Bruges
Zimmermann A (2008) Article 5: crimes within the jurisdiction of the court. In: Triffterer O (ed)
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cle by article, 2nd edn. Nomos Verlagsgesellschaft, Baden
Part I
Historical Roots of Ethnic
Violence in Kenya
Chapter 2
Background to the Post-Election Violence
Abstract Literature indicates that the violence accompanying the 2007 general

elections in Kenya was a spill-over effect of the country’s previous history, hence the
need to scrutinize the historical antecedents to these elections. This chapter identifies
and analyses five factors, namely negative ethnicity, dictatorship, political alliances,
criminal gangs and impunity, which, prior to the 2007 elections, had characterized
the Kenyan politics. The chapter reveals that in view of the five factors, feelings had
developed in Kenya, already before the 2007 elections, that certain ethnic communi-
ties had been deliberately marginalized since independence, while others had been
highly privileged or favoured in different ways. This gave rise, inter alia, to a number
of historical fears and grievances, mostly in relation to land. It is shown that this
state of affairs became a recipe for election violence accompanying all the multi-
party elections prior to 2007, and since the grievances were not addressed, and in
view of the previous trend of election violence, it indeed became certain that even
the 2007 general elections would not be free from violence.
Contents
2.1 Introductory Remarks.......................................................................................................... 16
2.2 Historical Role of Negative Ethnicity in Kenyan Politics.................................................... 17
2.2.1 Transition from Colonialism to Independence........................................................... 17
2.2.2 The Regionalism and Centralism Ideologies.............................................................. 19
2.3 The Rise of Monopartysm and Consolidation of Dictatorship............................................ 21
2.3.1 From De Jure Multipartysm to De Facto Monopartysm............................................ 21
2.3.2 Emergence of Factions Within KANU (1964–1966).................................................. 22
2.3.3 Suppression of Opposition Parties (1966–1982)........................................................ 23
2.3.4 From Kenyatta to Moi: Tyrannical Rule Consolidates............................................... 23
2.4 Resumption of Political Pluralism and Proliferation of Political Alliances......................... 26
2.4.1 Resumption of Multipartysm...................................................................................... 26
2.4.2 Politics of Alliances and Party Hopping..................................................................... 27

16 2 Background to the Post-Election Violence
2.5 Criminal Gangs, Election Violence and Impunity............................................................... 34

2.5.1 Use of Criminal Gangs for Political Purposes............................................................ 34
2.5.2 Trends of Election Violence........................................................................................ 36
2.5.3 Commissions of Enquiry and Culture of Impunity..................................................... 38
2.6 Chapter Summary................................................................................................................ 41
References................................................................................................................................... 41
2.1 Introductory Remarks
Sometimes due to historical connectedness of events, the present may not be fully
comprehended unless the past is brought into perspective. By the same token, it
may also be impossible to divorce completely the future from both the present and
the past. And usually, the link between the past, the present and the future becomes
even more relevant when one wishes to analyse a current event which in reality is
a culmination of preceding historical state of affairs. Locating such a link becomes
particularly crucial if the intention is, inter alia, to address the aftermath of such an
event and project what the future may hold. Any study, whether legal or otherwise,
relating to the post-election violence in Kenya will, by and large, befit this context.
A narrow view would associate the violence with the problem of power transfer
which faces most African countries after an election process. Usually, this problem
occurs when, after the poll count, it transpires that a ruling party or an incumbent
president seeking re-election has lost the election and must hand power over to the
opposition. The narrow view would explain why, for instance, the general percep-
tion in the run-up to the 1992 and 1997 multi-party elections in Kenya was that a
smooth transition from the then ruling party, KANU (in case it lost) to an opposi-
tion party (in case any won) was a myth and almost infeasible. This perception
existed only because in these two elections, the incumbent President Daniel Arap
Moi was seeking re-election.1 But as this chapter will reveal, this view, although
not entirely dismissible, is too narrow to wholly depict the real situation in Kenya.
Indeed the problem goes beyond mere electoral politics.
A broad view would indicate that it is inappropriate to describe the post-election
violence in Kenya merely as sporadic events attributable only to the 2007 electoral
process. On the contrary, this view would describe the violence as a climax of cumu-
lative historical factors or, as it has been described, as “a volcano that had long been
waiting to erupt”.2 The reference to a “volcano” in this regard describes long-stand-
ing grievances and several unresolved issues pertaining to social, political and eco-
nomic relations among Kenyans that had hitherto not been adequately addressed.3
The preceding remarks should, however, not be taken as suggesting that this
study is the work of a historian. The inclusion of this historical account is only
intended to bring into perspective the causal and factual links between Kenya’s
previous historical, socio-political background and the 2007–2008 post-election
1 See Troup and Hornsby 1998, p. 2.

2 Biegon 2008, p. 34.
3 Cf. Kenya Truth Justice and Reconciliation Commission Report 2013, Vol. IV, para 263.
2.1 Introductory Remarks 17
violence. Such a picture is considered crucial here, because it will prepare a

ground for a better understanding of the political paradigms or undertones sur-
rounding the proposed domestic criminal accountability measures to punish the
perpetrators of the crimes related to the violence.
To that effect, five factors unfold as generally being the most prominent features
that have singly or jointly characterized Kenya’s politics at a time since independence.
These are entrenched negative ethnicity,4 ethno-political alliances, dictatorship, hired
violence (criminal gangs) and entrenched “culture” of impunity. This chapter gives a
brief but reasonably fair account of these aspects of the Kenyan history.
2.2 Historical Role of Negative Ethnicity in Kenyan

Politics
2.2.1 Transition from Colonialism to Independence
The earliest indicators that negative ethnicity would adversely affect the post-colonial
Kenya were evident during the last days of the struggle for independence from the
British. The problem of negative ethnicity is an impress of the colonial legacy, having
been reinforced by the British ruling system. The British introduced a divide-and-rule
system in Kenya as they also did in their other African colonies. This was a system that
entailed a purposeful stratification of the colony’s population in a number of ways,
including along ethnic lines, mostly for ease of ruling and exploitation.5
By 1950 Kenya was already divided by economic differentiation between the
minority white population and the majority local population. This differentia-
tion was evident in, among other aspects, the allocation of massive land to the
white settler farmers, which land was alienated from the indigenous
population.6 The Kikuyus were the most affected ethnic community. The land
4 Negative ethnicity refers to the use of tribes or tribal affiliations to further the interests of one
ethnic group against those of other similar groups or at the expense of national unity, peace and
security. It is contrasted from “positive ethnicity” whereby ethnicity is used to mirror group’s
identity in terms of its customs, traditions and culture. Thus, whereas positive ethnicity, in the
African context, is good for the nations that are ethnically diverse, negative ethnicity could
become disastrous. For greater detail see generally Wamwere 2003a, b.
5 Cf. Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, paras
259–263. The divide-and-rule system created both a physical and social distance among the colo-
nial subjects. It was implemented through, inter alia, dividing the colonial territory into smaller
geographical-cum-administrative regions, in order to decentralize and consolidate ruling at the
grass root level. It was used as a formal separation of the colonial population according to their
ethno-regional origins to facilitate exploitation of each. It also entailed an indirect rule system in
which the tribal leaders (chiefs) received favours and privileges from the colonial government,
and consequently, were used as instruments/puppets of that government. For more details see
Christopher 1988, pp. 233 et seq.
6 Troup and Hornsby 1998, p. 7.
issue was one of the underlying reasons which triggered a long war of libera-
tion, the Mau Mau movement, between 1952 and 1960.7 The earliest impact of
the divide-and-rule policy manifested itself during this war. The majority of the
members of the other big ethnic groups, mostly the Luo, the Luhya, the
Kalenjin and the Coastal people, remained as bystanders, having refused to
rally behind the Kikuyu leadership.8 Thus, Mau Mau was in some way consid-
ered as a Kikuyu affair, and was brutally suppressed by the colonial state in the
late 1950s.
Apart from this armed struggle, ethnic interests continued to shape most
events, even those which concerned or seemed to affect the collective interests
of the Kenyan people as a whole. For instance, in the early days of negotiations
for independence, specifically in the famous 1962/1963 Lancaster Conferences
in London,9 ethnicity took precedence, and strongly shaped the demands of the
Kenyan participants. The fear that “big tribes” would dominate the “small
tribes” after independence was taken seriously by some of the participating
members of the Kenyan delegation. There was an informal division among the
Kenyan delegation which, to a great extent, was informed by tribal affiliation of
the delegates. Two parties, namely, the Kenya African National Union (KANU)
and the Kenya African Democratic Union (KADU) participated in the confer-
ence, apparently representing ethnic demands of their respective members.10 As
the following section will show, the difference between these parties also
entailed an ideological dimension which, in a way, had a link to the tribalistic
dimension. This pertained to the structure of the constitution which should be
adopted at independence. The said ideological dimension remained one of the
key issues dominating Kenyan politics throughout, including during the 2007
elections and beyond.
7 The Mau Mau was not only a rebellion against the British colonial government, but also as
a civil war among the Kikuyus. They set against their own chiefs, the ambitious commercial
farmers and local Christians who were supportive of the colonial system. See Troup and Hornsby
1998, p. 7.
8 Ibid., pp. 7–8.
9 Three Lancanster conferences held between 1962 and 1963 were part of the Great Britain’s
programme for empire dissolution by relinquishing its political domination over overseas terri-
tories. In respect of Kenya, the conference brought together the existing Kenyan political parties
to agree on the form of government and the structure of the constitution to be adopted after full
political independence. See Manner 1962, p. 8; Ogot 1995, pp. 73–76.
10 KANU was predominantly of Kikuyu and Luo membership, the largest and second largest
ethnic groups, respectively. On the other hand, KADU’s membership comprised the smaller
tribes of the Abaluya, the Kalenjin, the Maasai and Coast people. See Manner 1962, p. 9. The
remaining small tribes, if taken singly, were not a “threat”, because their population was insig-
nificant. Since independence, these tribes have always showed allegiance to the political affilia-
tions of whichever big tribes they think would best protect and advance their interests. See Lamb
1969, p. 538.
2.2 Historical Role of Negative Ethnicity in Kenyan Politics 19
2.2.2 The Regionalism and Centralism Ideologies
In the early 1960s, after the British had shown interest in decolonization, party
politics in Kenya took a new dimension, as they became dominated by two differ-
ent themes. In 1961, the main issue was the release of Jomo Kenyatta, a Kikuyu
hero and first President of independent Kenya.11 This was followed, between 1962
and 1963, by the argument or theme already alluded to above—the structure of the
government to be adopted at independence. It is within the context of the second
theme that the 1963 first general elections were dominated by two quasi-ideologi-
cal arguments, namely centralism versus regionalism.
From the onset, the two political parties, KANU and KADU, wanted a constitu-
tional structure which, as a matter of priority, would benefit the tribal interests of
their members. This placed the expected independent Kenya in a latent problem of
tribalism and nepotism. KANU strongly wanted an independence constitution
based on centralism (unitary state), while KADU strived for regionalism or feder-
alism. KANU’s centralism envisioned a constitutional structure with three main
features: an administration of the country done by a central government in
Nairobi; a state-driven economy; and a free competition for resources.12
Apparently, this had a strategic reason: to ensure that its members, predominantly
Kikuyu and Luo, would perform relatively better in this set-up. KADU, which
claimed to protect the interests of the minority ethnic communities, was in the
phobia of “domination” by the two big tribes in the structure proposed by KANU.
For this reason it campaigned for majimbo13 (Swahili word for regional govern-
ments) in which different federal “states”, apparently based on ethno-regional
demarcations, would have the autonomy to decide their own affairs, more impor-
tantly the question of ownership of land and other resources found in their
majimbo.14
11 Jomo Kenyatta was the first president of independent Kenya. In 1952, following a declaration
of a state of emergency by the British colonialists, he and other Kenyan nationalists were arrested
and charged with “managing and being members” of an illegal movement, the Mau Mau. He
was sentenced to 7 years imprisonment and remained under restriction, even after serving his
sentence, until 1961. See “African History: Jomo Kenyatta” http://africanhistory.about.com/od/
biography/a/bio-Kenyatta01.htm. Accessed August 2014.
13 Originally, this is traceable to the formation of the Federal Independence Party (F.I.P), a
political party formed by white farmers in Kenya in 1954. The F.I.P had foreseen that politi-
cal independence in Kenya was inevitable, and that it would place control into the hands of an
African central government. They wanted to seal off the “white highlands” from the reach of a
Black central government, so as to ensure that the great wealth of these areas remained in the
hands of those who had been responsible for developing it. They would then establish a local
self-government (white state) in the area, and so would the Africans in other states to be demar-
cated. Therefore, the original ambition of the F.I.P. was that Kenya would become a federation of
several states. See Sanger and Nottingham 1963, p. 10.
14 Troup and Hornsby 1998, p. 9. For more details on the majimbo ideology see Anderson 2005,
pp. 547 et seq.

It was in this context that during the independence negotiations at the Lancaster
Conference, KADU’s delegation carried the slogan “regionalism or death”. In a
meeting before departing for London, the party leaders had assured their members
that they were prepared to negotiate for majimbo constitution at any cost, even if it
meant bloodshed.15 The party secretary even told KADU members that the
“Abaluhya, Kalenjin, Maasai and Coast people” would declare their independence
if regionalism were not adopted at the Lancaster Conference.16 Eventually, the
framework constitution agreed upon in London, and which was operational at
independence, was based on majimbo system.17 This was the case despite the fact
that there was a misconception about the framework actually adopted, each party
claiming to have triumphed in having its ideology adopted.18
The Lancaster arrangement led to the first general elections in 1963. In these elec-
tions, more divisions were witnessed, whereby tribalism and the phobia of “big tribe
domination” manifested themselves clearly. The so-called “small tribes” did not trust
KANU’s candidate, who was also Kenya’s independence hero, Jomo Kenyatta. They
accused him of having sided with a group of Kikuyu elites which was allegedly plan-
ning on how their tribe should receive awards commensurate with their suffering in the
Mau Mau war of liberation. Leaders of the “KADU tribes”, specifically the Maasai,
Abaluya and the Kalenjin, feared that without regionalism their land would be grabbed
by the “KANU tribes”, for Kenyatta was nothing but allegedly a “Kikuyu tribalist”.19
As a result, the election campaigns assumed a tribal trend at all levels. In the areas
inhabited by the “small tribes” the decision on who to vote for was not necessarily
based on candidates’ leadership qualities, but rather on their ethnic affiliations.20
Eventually, KANU won the majority seats in the elections, the fact which ena-
bled it to form an autonomous internal government. Jomo Kenyatta became
Kenya’s first Prime Minister.21 For a short period of time, Kenya became a
15 Manners 1962, p. 9; Sanger and Nottingham 1963, p. 12.

16 Manners 1962, p. 9.
17 See Ndengwa and Letourneau 2004, p. 85.
18 While KADU came out of the negotiation confidently claiming that the majimbo structure had
been adopted, KANU refuted this claim as a misconception. Instead KANU was confident that
the draft which had just been adopted kept intact the centralism structure that was being used by
the departing colonialists. See Sanger and Nottingham 1962, pp. 8–9.
19 Ibid., p. 11.
20 Ibid., pp. 16–17, indicating, for example, that in Kericho East constituency, the KADU’s
political advisor said that he would resign his seat in protest should a non-Kipsigis candidate be
elected as he had too strong feelings against “foreigners”. In the Coast the campaign slogans for
KADU, on which it won, were “Wabara kwao” (literally meaning upcountry people to their own
home) and later “Kila mtu kwao” (meaning each man to his own home).
21 Results for the House of Representatives were: KANU (83 seats), KADU (33 seats) and
African People’s Party, APP (8 seats). For the Senate, the results were: KANU (18 seats),
KADU (16 seats), APP (2 seats), Independents (1 seat), and the Nyanza Province African
Union, NPUA (1 seat). See Electoral Institute for the Sustainability of Democracy in Africa
(EISDA) at http://www.eisa.org.za/WEP/ken1963results.htm and http://www.eisa.org.za/WEP/
ken1963results2.htm. Accessed August 2014. See also Sanger and Nottingham 1963, p. 36.
2.2 Historical Role of Negative Ethnicity in Kenyan Politics 21
Dominion State pending official declaration of independence. In this transitional

arrangement, the British monarch remained the Head of State22 and the Prime
Minister became the Head of Government. Independence was officially declared
on 12 December 1963, and on 1 June 1964, Kenya became a Republic, Jomo
Kenyatta being its first Executive President. Having won the elections, KANU was
determined to use its overwhelming majority in Parliament to diffuse the majimbo
system, as it claimed that such a system was “unnecessary and expensive, and that
it constrained its (KANU’s) rightful power emanating from its electoral
supremacy”.23
2.3 The Rise of Monopartysm and Consolidation

of Dictatorship
2.3.1 From De Jure Multipartysm to De Facto Monopartysm
As pointed out earlier, Kenya was a de jure multi-party state at independence,

KADU being the official opposition party after the 1963 elections. However, after
KANU’s victory in these elections, concentration shifted temporarily from the ide-
ological differentiation of the two parties to the building of a new consensus, i.e.
politics of nation-building. In this new focus, national stability and identity were
heralded as the most important national priorities of the infant state.24 KANU was
successful in ensuring that a completely new argument emerged. The argument
was that the new priorities of the infant nation could not be realized if the “con-
frontational electoral politics” envisaged by the Westminster-style democracy
inherited from the departing colonialists was emphasized.25 Apparently, the new
“consensus”, the paramountcy of nationhood over party ideologies, was put to
experiment when the first cabinet was formed. KANU’s “determination” to the
consensus seemed to have been confirmed when Kenyatta created a “tribal ruling
coalition” within the KANU government by bringing in members of the small or
“KADU tribes”.26 This, to some extent, eased the tension, overcame the fears of
big tribe domination and, more importantly for KANU, appeared to render
KADU’s “protective” ideology of regionalism completely redundant.27
22 Constitution of Kenya of 1963, Article 72.

23 See Ndengwa and Letourneau 2004, p. 85.
25 Ibid.
26 In order to balance the tribes and factions within KANU, Kenyatta co-opted his long-time Luo
rivals, Jaramogi Oginga Odinga and Tom Mboya. These were given portfolios of equal stand-
ing. All the regions were found a minister and all big and small tribes had their member in the
government. See Sanger and Nottingham 1963, pp. 37–38.
The tribal-regional balance achieved in the Kenyatta’s first cabinet, together

with the new perception, namely that competitive party politics was detrimental to
the development of the infant state, had a serious impact on the continued exist-
ence of KADU. First, KADU’s strong supporters of majimbo vanished from the
scene, as the ideology seemed to lose its strength drastically. This paved the way
for Kenyatta’s new ideology, harambee (working together).28 Secondly, KADU
was significantly weakened by defections, as most of its members started to cross
the floor in the National Assembly to join KANU having been lured by promises
of more funds from the government for the development of their communities.29
Apparently, this was a tactic by KANU to have KADU dissolved.30 Shortly there-
after KADU actually dissolved itself voluntarily in December 1964, thereby ren-
dering Kenya a de facto single-party state.31 KADU’s key leaders, including
Daniel Arap Moi (a Kalenjin), joined KANU, and were soon appointed to key
ministerial positions in the KANU government.32
2.3.2 Emergence of Factions Within KANU (1964–1966)
The amalgamation of KADU into KANU did not save the purpose for which it
was intended. Instead, it brought the old ideological differences into KANU, and
even created more others from within it. The reason being that before the fusion of
the two parties, already there were two groups of radicals and moderates within
both KADU and KANU.33 For instance, while on the one hand the radicals advo-
cated for, among other things, a total shift from pure capitalist economic policies
inherited from the departing colonialists to socialist policies similar to those that
were later adopted in neighbouring Tanzania, the moderates, on the other hand,
preferred to continue with the status quo. Thus, upon the fusion of the two parties,
a number of other radicals and moderates such as Daniel Moi moved from KADU
to KANU to add to the numbers. This consolidated the existing factional groups.
As a result, KANU experienced an internal threat of stability. A deliberate cam-
paign was launched to eliminate all the followers of the radical faction. It was
achieved through rigged party elections, allegedly engineered by President
Kenyatta and his moderate allies.34 This was then followed by the demotion of
Jaramogi Oginga Odinga, a radical, from vice presidency at the party conference
in Limuru. His seat was taken by Daniel Arap Moi, a moderate, who, later in
28 Anderson 2005, p. 547.

29 Odhiambo-Mbai 2003, p. 61.
30 Ibid., p. 60.
34 Ibid., p. 13.
2.3 The Rise of Monopartysm and Consolidation of Dictatorship 23
January 1967, was named Vice President. This happened after the eliminated
radicals—a group of 29 KANU MPs led by Jaramogi Oginga Odinga—did party
hopping; they crossed the floor and found a new party, the Kenya People’s Union
(KPU), in 1966.35 Thus, from 1966 Kenya resumed its de jure multiparty status.
2.3.3 Suppression of Opposition Parties (1966–1982)
KANU’s strategy had always been to remain the sole political party in the Kenya’s
politics, even where Kenya was de jure a multiparty state. The formation of the
KPU was viewed as a hindrance to the realization of this ambition. As a result,
between 1966 and 1969 there was a serious suppression of political opposition.
Firstly, immediately after the KPU’s formation, KANU engineered an ex post
facto constitutional amendment which forced all KANU MPs who had “crossed
the floor” to re-contest their seats. Only six of them were re-elected. Secondly, the
KPU’s political activities were suppressed, including registration of new branches,
which was refused or deliberately delayed. Thirdly, constitutional amendments
and other draconian laws targeting the opposition were enacted. Such laws banned
independent candidates and empowered the President to order preventive deten-
tions.36 The climax of this suppression was reached in 1969 when the KPU was
banned and its leaders, including Jaramogi Oginga Odinga, were arrested and
detained without trial.37 Kenya became once again a de facto single party state.
2.3.4 From Kenyatta to Moi: Tyrannical Rule Consolidates
The banning of the opposition parties was never lifted throughout the remaining
tenure of Kenyatta, who remained president until 1978 when he died. The then
Vice President Daniel Arap Moi, a Kalenjin, took over the presidency, despite the
disapproval of the Kikuyus in KANU.38 Having assumed power, Moi promised to
follow the nyayo (footsteps) of the “old man” (Kenyatta).39 The nyayo politics, for
sure, saw to it that the dictatorial state originally crafted by the “old man” was
perfected. Moi’s regime became relatively more tyrannical and self-centred

36 Mueller 1984, pp. 407–418.
37 Ibid., 417.
38 When Kenyatta died, the Kikuyu, through the then powerful association, the Gikuyu, Embu
and Meru Association (GEMA), strived to retain the political power within their tribes. These
efforts became futile as the transition went smoothly in favour of Moi. For more details see
Asingo 2003, pp. 20–24; Kimundi 2011, p. 81; Steeves 2006, pp. 211–212; Tamarkin 1979, pp.
21–33.
39 Biegon 2008, p. 37.
compared to Kenyatta’s.40 For example, notwithstanding the ban against opposi-

tion parties, it is said that the Kenyatta regime had a higher level of tolerance for
freedom of expression, dissent, criticism and independence of the judiciary than
the Moi regime.41 When Moi took over, ethnic tensions and mistrust grew stronger
as attention was perceived to have shifted from the Kikuyus, who had relatively
benefited under Kenyatta’s rule, to the people of Rift Valley (Moi’s home
Province).42 In the early 1980s, Moi is said to have made deliberate efforts to
minimize the control of the Kikuyu elite in both public parastatal boards and civil
service by replacing some of them with his loyal appointees.43 The Moi regime
continued to show all signs of authoritarian tendencies and concentration of
powers in the presidency.
Two landmark events dominated the political scenes in 1982. First, through a
motion moved by the then Vice President Mwai Kibaki,44 the existing Constitution
was amended by inserting the infamous section 2A that officially converted Kenya
to a single party state.45 It should be recalled that since 1969, when the opposition
party, Kenya Progressive Union (KPU) was banned, Kenya had only remained a
de facto single party state. The leaders of the banned KPU had, therefore, been
rendered politically impotent, because they were denied any chance to contest any
seats, even those who joined KANU. Once again, led by Jaramogi Oginga Odinga,
they tried to form and register a new political party, the Kenyan Socialist Alliance,
in order to challenge KANU’s monopoly of political power. However, registration
was refused, and immediately, the aforementioned constitutional amendment was
promulgated to make Kenya a de jure mono-party state from 1982.46
The second event that dominated the political scene was an attempted coup
d’état in August 1982, which was allegedly staged by low-rank members of the
Air Force. It is not very clear which politicians were behind this attempt, although
it is alleged that some of the senior Kikuyu members in KANU, the army and the
police force were responsible.47 Subsequent to this event, Moi strived more to
40 See, generally Adar 2000, pp. 74–96.

41 Troup and Hornsby 1998, pp. 26–27.
42 Biegon 2008, p. 37; Troup 1993, p. 371.
43 Troup and Hornsby 1998, pp. 30–31. This was done in order to deconstruct the Kenyatta
hegemony. Two strategies are said to have been used to achieve this. The first strategy was the
disengagement of influential politicians from the activities of civil society. The second strategy
was the creation of strong patron-client networks within the civil society. In this way, the state
was able to silence the opposition groups that were contained in the civil society. See Kanyinga
2003, p. 104.
44 NB. During the 2007 elections, Mwai Kibaki was PNU presidential candidate who was vying
for his second and last term. Apart from Vice Presidency, he also held various ministerial posts
under KANU in both Kenyatta and Moi governments. He left KANU and joined opposition when
multipartysm was re-introduced in 1991.
45 See Otieno 2010.
46 Kanyinga 2003, p. 102.
47 Troup and Hornsby 1998, p. 31. For more details about the coup see Pal Ahluwalia 1996,
pp. 129–148.
2.3 The Rise of Monopartysm and Consolidation of Dictatorship 25
c entralize power and perfect the repressive state. The operation of an “imperial
presidency” became more evident than ever before. The separation between the
three arms of state became blurred, as the Judiciary and Parliament are said to
have been reduced to mere “appendages” of the all-powerful Executive.48 The
party (KANU) became the central focus of authority, while the Parliament
assumed a subordinate status. Some voices of discontentment were still raised
despite serious state intimidation. The clergy, for example, echoed their dissent
from the pulpit, having seen that democracy was being trampled underfoot.49
Those who opposed Moi had a huge price to pay. The state agents implemented
preventive detentions without trial, forcible exiles, political assassinations and
extra-judicial killings.50 Raila Odinga51 was Kenya’s longest serving political pris-
oner in this regard.52 After the attempted coup, he was put under house arrest for
7 months, detained without trial for 6 years, and later, in 1988, tried for supporting
an underground movement, the Kenyan Revolutionary Movement, which was
demanding a reintroduction of multiparty system in Kenya.53 The following para-
graph, retrieved from a post-Moi government official report, summarizes how
tyrannical the Moi State turned:
The Moi government pursued an open policy of using naked state violence to suppress
and vanquish the political opposition and pro-democracy campaigners, among them civil
society, opposition political parties, journalists, students, the clergy, and any and every
real or imagined political dissident. Opposition political rallies and meetings of govern-
ment critics were frequently broken up, and violently so. Police and security forces have
killed scores of reformers throughout the last two decades.54
In the 1990s, the Moi-KANU government, under the pretext of land clashes, alle
gedly instigated and, in some cases, directed an ignition and execution of inter-
ethnic violence against the communities and zones which supported opposition
against Moi.55 In the Rift Valley and Coastal provinces, for instance, people from
other provinces (tribes) were termed as “foreigners” or “land grabbers” and subse-
quently forced out of their land or, in some instances, killed instantly. This has
even been equated to “attempted genocide by way of ethnic cleansing”.56
48 Kimundi 2011, p. 80; Mutua 2001, p. 98.

49 Troup and Hornsby 1998, p. 37. Also see Kanyinga 2003, p 104.
50 Kimundi 2011, p. 82. Also see Ajulu 2000, pp. 137 et seq; Londale, 2004, pp. 91 et seq;
Muigai 1995, pp. 171 et seq.

51 NB. Raila Odinga was the presidential candidate for the Orange Democratic Movement
(ODM) in the 2007 elections. He is a son of Jaramogi Oginga Odinga, KADU’s leader and the
former KANU’s Vice President, who, in a similar way, experienced the mighty hand of the tyran-
nical state under Kenyatta.
52 Musila 2009, p. 447. Cf. Miguna 2012, p. 108.
53 Kimundi 2011, p. 83; Musila 2009, p. 447. For more details see Odinga 2013.
54 Republic of Kenya 2003, p. 31.
55 Mutua 2001, p. 98.
56 Kimundi 2011, p. 82; Musila 2009, p. 447; Republic of Kenya 2003, p. 31.
2.4 Resumption of Political Pluralism and Proliferation

of Political Alliances
2.4.1 Resumption of Multipartysm
In December 1991, with Moi still in power, Kenya resumed its roots as a de jure
multiparty state, thereby responding to the mounting pressure from within the
country as well as from the international community, especially the donors.57 The
Constitutional provision establishing the mono-party state was repealed, and a
constitutional restriction of the presidential seat to a maximum of two five-year
terms was introduced.58 Interestingly, despite its past suppression, the call for the
majimbo (federalism) ideology resurfaced alongside the domestic pressure for
resumption of multipartysm.59
The first two multiparty elections were conducted in 1992 and 1997, and in
both elections KANU emerged victorious. The presidential term limit intro-
duced with the resumption of multipartysm in 1991 was prospective in nature.
Consequently, although the incumbent President Moi had already been in power
since 1978, he was allowed, under this arrangement, to count his “first” term
effectively subsequent to the date of the law establishing term limits. He thus
contested as KANU’s candidate in both the 1992 and 1997 presidential elec-
tions. The mere presence of Moi’s name in the ballot paper diminished almost
completely the chances for the opposition parties to win these two elections.
The main reason for this pessimism was that, although the opposition was
57 See Otieno 2010. For details on how this pressure was effective, see Brown 2001, p. 726;
Klopp 2001, pp. 481–482; Oyugi 1997, pp. 45–47.

58 See Kimundi 2011, p. 80; Otieno 2010.
59 The call for majimbo mostly came from Rift Valley, the province where KANU had a strong
hold. The aim seemed similar to the 1960 s idea of majimboism. As Klopp notes “[t]he attrac-
tion of such a model for Kenya's patronage bosses was that, even if they should lose control of
the central government, they could bargain with the new leaders on the basis of their political
strength in ethnic enclaves where their grip on local politics would ensure their dominance”. See
Klopp 2001, pp. 483–487. Subsequently, the majimbo discussion (pro and against) featured again
prominently towards the adoption of Kenya’s 2010 Constitution. See The Standard 29 March
2010; The Standard, 28 March 2010; The Standard 26 March 2010; The Standard, 19 March
2010; Daily Nation, 28 September 2010 and Daily Nation, 16 September 2010. Although the
advocates of majimbo did not succeed by a 100 %, the new constitution of Kenya of 2010 set-
tled on a county system of governance. It established a dual system of government, consisting
of 47 county governments and the national government. In this new structure, the county gov-
ernments were given semi-autonomous powers of legislation and implementation of governance
of their respective plans without prejudice to the control exercised by the National Government.
The President was given powers to dissolve any county under prescribed conditions in Part 6 of
Chapter Eleven, read in tandem with the Fourth Schedule to the Constitution. It is said that the
county system is more of a compromise between those who favoured a purely federal/regional
system and those who favoured a purely unitary system. See Daily Nation, 31 March 2010;
Mugoya, 2010, pp. 1 et seq.
2.4 Resumption of Political Pluralism and Proliferation of Political Alliances 27
generally too weak and divided to triumph over KANU, Moi, being the head of
state seeking re-election, had an added advantage: he had at his disposal all the
loyal state agents and machinery which he could use—and which he allegedly
used—to manipulate the whole process.60 What else could one expect from a
framework where the incumbent President was the discretionary appointing
(and firing) authority of the officials charged with the task of managing the
elections? As will be shown shortly, the opposition parties had to wait until
2002 for them to win against KANU. This time, however, Moi was no longer
eligible to contest having exhausted his two-term limit.
2.4.2 Politics of Alliances and Party Hopping
Since its inception, the multiparty system in Kenya has exhibited a constant
trend of mergers, alliance forging and pact signing among the parties. The
immediately conceivable rationale for this practice could be the need for
strength-building in the environment characterized by proliferation of political
parties.61 These alliances have exhibited two characteristics. Firstly, in all cases,
they have been ad hoc in nature, emerging only as temporary vehicles for politi-
cal elites angling for post-election posts. They have hardly lasted after elec-
tions, even in the first case in which an opposition alliance won the presidential
election in 2002. The composition of the alliances changes frequently due to
“party hopping” i.e. the tendency of individual members to constantly change
their party affiliations. This tendency has been described sarcastically as “politi-
cal nomadism”,62 and one that makes most political parties in Kenya “indomita-
ble lions”.63 Secondly, ethno-regional interests have remained the common
denominator in almost all the party alliances, specific focus being on power and
access to state resources.64
The following parts describe some of the major party alliances in which the
aforementioned features manifest themselves clearly. One notable thing is that
most alliances emerged towards the 2002 and 2007 elections.

61 For instance, at the time of general elections in 2007, there were about 300 registered politi-
cal parties, out of which 117 nominated candidates for the National Assembly. This number
had significantly reduced to 47 parties by March 2010 following the enforcement of a new law,
the Political Parties Act of 2007, which was introduced to check on the proliferation of parties.
See the information by the Electoral Institute for Sustainability of Democracy in Africa (EISA)
http://www.eisa.org.za/WEP/ken2010parties.htm.and http://www.eisa.org.za/WEP/kenparties2.
htm. Accessed September 2014.
62 Tsuda 2010, p. 12.
63 Keverenge (undated), p. 14.
64 Ibid., p. 36.
2.4.2.1 The Rise and Fall of the “New KANU” Alliance
Having won the first two multiparty elections in 1992 and 1997, Moi was
constitutionally barred from seeking re-election in the 2002 elections. The
pre-conceived fear that he would engineer a constitutional change to enable him
extend his term limit was rebutted by Moi himself.65 Therefore, towards the
2002 elections, the transition in respect of the occupier of the presidential seat
became clear. This gave rise to yet another cloud of uncertainty and specula-
tions, which dominated the period preceding the elections. This uncertainty
pertained to whether, apart from the transfer of the presidency from Moi to a
new individual, the transition would also entail a transfer of the presidency
from the long ruling party, KANU, to another political party. Apparently, Moi
himself was engulfed in this uncertainty. He, like all other Kenyans, could not
predict with certainty how the ethno-regional dynamics in the Kenyan voting
patterns would affect this election, especially now that the “professor of poli-
tics” (Moi as he was known) would no longer be running for president. This
caused fear that KANU’s candidate might fail to acquire the 25 per cent vote
threshold required under the existing Constitution.66 Only a political alliance
was the way out. Moi worked on one.
2.4.2.1.1 Courting Alliance with Odinga’s NDP
To reduce uncertainties and increase KANU’s chances of victory, Moi decided, as

the 2002 election approached, to solicit a merger with Raila Odinga’s opposition
party, the National Development Party (NDP). It was ironical that Moi sought to
ally with Raila Odinga who had previously been a victim of torture and preventive
detention by the Moi regime for almost a decade. Odinga had an overwhelming
support of his tribe (Luo), one of the biggest tribes in Kenya. So the immediate
question was whether these former antagonists would be able to work together in
good faith, or whether their “political marriage” was merely one of convenience.
The KANU-NDP collaboration started as a parliamentary alliance on the basis
of parliamentary seats each party had won in the 1997 elections.67 It culminated
into a full merger in March 2002, whereupon NDP leaders, including Raila Odinga,
65 This fear had intensified because, among other things, Moi did not show any interest in the
Vice President, Professor George Saitoti, as the elections drew near. The public had expected that
Saitoti would be groomed as Moi’s successor. See Asingo 2003, p. 32.
66 The law required that for a presidential candidate to be declared President, he or she must,
among other things, garner a minimum of 25 % of the valid votes cast in at least five out of the
eight provinces of Kenya. See Constitution of Kenya, 1963 (R.E 2009), Article 5(3)(f).
67 In the 1997 elections, KANU won the majority in the parliament only by a small margin of 4
seats over the combined opposition parties. Thus, a parliamentary alliance with one of the oppo-
sition parties was considered inevitable in order to have a comfortable majority for assurance.
See Odhiambo-Mbai 2003, p. 70.
were elevated to ministerial positions.68 The resulting alliance was named “New
KANU”. The underlying aim of this alliance, in Moi’s perspective, was to widen
KANU’s voter-strength by securing the vast NDP support in Nyanza Province,
which was predominantly of Odinga’s Luo ethnicity.69 Following the merger, Moi
believed that KANU was now stronger than ever, because it had brought on board
each of the five big ethnic groups70 by having one of “their persons” as party
leader.71 As Moi was preparing to finish his second term (1997–2002) and leave
office, this was part of his broad but hitherto undisclosed succession plan.
2.4.2.1.2 Effect of Moi’s Succession Plan: Project Uhuru
After the KANU-NDP successful merger, it appeared that Moi had managed to
play the “ethnic cards” well, because the resulting alliance had a strong fusion of
ethnic forces. However, as soon as the secret of his succession plan became
known, the merger that Moi had created turned sour and became a source of great
discomfort for him. A perception emerged that Moi’s succession plan was crafted
deliberately to enable him continue ruling Kenya indirectly even after his formal
retirement. The reason was that the party constitution that was adopted during the
merger allocated extraordinary powers to the Chair (Moi), such as powers to
approve cabinet appointments and a veto over major government policy decisions,
that is, if the alliance won and formed the government.72 Moi was aware that if
this was to be achieved, his successor had to be someone who was loyal to him—
an individual who, even as president, could be controlled easily from behind the
curtain. Moi, therefore, imposed the 41-year old Uhuru Kenyatta, the son of
Kenya’s first president Jomo Kenyatta, as New KANU’s presidential candidate.
Moi told the nation:
I have chosen Uhuru to take over leadership when I leave. This young man Uhuru has
been consulting me on leadership matters. I have seen that he is a person who can be
guided. If there are others who are chosen then it will depend on the people.73
68 Elischer 2008, p. 19.

69 Asingo 2003, p. 115.
70 There are at least five most influential ethnic groups the support of which any politician
would strive to win in any presidential election in Kenya, if he or she is to increase the chances
of victory. Their importance lies in their composition of the total national population. These are:
Kikuyu (21 %), Luhya (14 %), Luo (12 %), Kalenjin (12 %) and Kamba (11 %). See Elischer
2008, p. 1.
71 With this vision, the party leadership structure was changed to create five vice chairmanship
positions, apparently to cater for each of “the big five”. Four Vice Chairmen elected were: Uhuru
Kenyatta (a Kikuyu), Musalia Mudavadi (a Luhya), Kalonzo Musyoka (a Kamba) and Noah
Katanangala (a Mijikenda). Moi (a Kalenjin) remained Chairman, while Raila Odinga (a Luo)
was elected Secretary-General. See Odhiambo-Mbai 2003, p. 71. Cf. Steeves 2006, p. 217.
72 Steeves 2006, p. 218.
73 Daily Nation 29 July 2002 (emphasis added). See also Odhiambo-Mbai 2003, p. 77.
This imposition was met with a strong, open and unprecedented defiance of Moi.
The defiance was orchestrated by Raila Odinga, supposedly due to his “intoxicat-
ing influence and his aggressive and uncompromising pursuit of what he believes
to be right”.74 Consequently, despite Moi’s preference of Kenyatta, five other indi-
viduals in the New KANU alliance, including Odinga, also declared their interests
to be nominated as the alliance’s presidential candidates.75 They formed a faction
within the New KANU alliance and named it a “Rainbow Alliance”. The aim of
this faction was to push for democratic nominations, opposing the imposition by
the Uhuru-Moi faction of an “unpopular” candidate. However, seeing that they
were unlikely to defeat Moi, the Rainbow Alliance transformed itself into a politi-
cal party, the Liberal Democratic Party.76 This event happened coincidently with
the endorsement of Uhuru Kenyatta as KANU’s candidate at Kasarani on 14
October 2002.77 This marked the end of the short-lived New KANU political mar-
riage. Meanwhile, the other opposition parties were also strategizing on their own
political alliances.
2.4.2.2 Advent of the Rainbow Coalition as a Winning

Opposition Alliance
The formation of the short-lived New KANU alliance had sent signals to the oppo-
sition parties that if they resorted to contesting individually in the 2002 elections,
they would lose. The fragmented opposition had lost the two preceding multiparty
elections supposedly due to lack of unity.78 As a strategy for unity towards the 2002
general elections, two opposition alliances were formed a few weeks before the
general elections with a view to competing against KANU in the presidential elec-
tion. The first alliance was the Liberal Democratic Party (LDP), which, as already
explained in the preceding section, originated from the Rainbow Alliance that had
severed itself from the New KANU. The second alliance was the National Alliance
(Party) of Kenya (NAK) that started as an alliance of three political parties,79 but
which would later admit more parties to become an alliance of 13 political parties.
74 Asingo 2003, p. 34.

75 The others were Moi’s Vice President Professor George Saitoti, Kalonzo Musyoka, Noah
Katanangala and Musalia Mudavadi. However, Moi was able to persuade and co-opt Katanangala
and Mudavadi, who abandoned their interests in the presidency and supported Kenyatta. The
other three could not be “deceived” by Moi to abandon their interests. See ibid., p. 34.
76 Steeves 2006, p. 220.
77 Asingo 2003, p. 34.
78 For instance, in the 1997 elections, KANU candidate won by 41 % although the four opposi-
tion candidates got 59 % of all the presidential votes in the aggregate. Individually, however, only
one opposition party, the DP, got 31 %. See Kanyinga 2003, pp. 108–111.
79 This alliance brought together the Democratic Party (DP) under Mwai Kibaki, the National
Party of Kenya (NPK) under Charity Ngilu and the Forum for Restoration of Democracy-Kenya
(FORD-Kenya) under Michael Wamalwa. See Odhiambo-Mbai 2003, p. 79.
On 22 October 2002 the two alliances above, the LDP and the NAK, decided to
merge into one opposition alliance, the National Rainbow Coalition (NARC)
(hereafter “Rainbow Coalition”). Thus, the Rainbow Coalition was an alliance of
alliances—a grand alliance. Its origin was in two agreements (i.e. memoranda of
understanding) signed on 21 October 2002 between the LDP and the NAK. The
first agreement, which was made public, was based on policy commitments and
the principles of power-sharing in a coalition government in the event that the
Rainbow Coalition won the elections. The second agreement was signed secretly
between the leaders of the parties to the Rainbow Coalition, and was never made
public. However, it later came to light that in the secret agreement the parties had
agreed on a detailed power-sharing formula which would be adopted after winning
the elections.80 Indeed the Rainbow Coalition was able to win both the presiden-
tial and parliamentary elections by an overwhelming majority. Its presidential can-
didate Mwai Kibaki was declared the winner, thereby defeating KANU’s
candidate, Uhuru Kenyatta.81
Therefore, the 2002 presidential election in Kenya goes down in history for
being the first time that KANU, the party which had been in power since inde-
pendence, was ousted from power by an opposition alliance, the Rainbow
Coalition. But as the next section shows, this particular alliance, too, was another
“indomitable lion”; it did not last long.
2.4.2.3 Towards the 2007 Elections: Disintegration of the Rainbow

Coalition and Advent of PNU and ODM Alliances
2.4.2.3.1 Rainbow Coalition: A Fragile Alliance
The Rainbow Coalition was a unity whose cohesion remained largely dependent
on a bona fide implementation of the memoranda of understanding signed among
its members. As indicated earlier, the emergence of factions within political parties
leading to break aways had become a common feature in Kenya’s politics before
and after the advent of political pluralism. This explains the early prediction that,
even though it had won the 2002 presidential election, the Rainbow Coalition, too,
was a fragile alliance which was prone to disintegration at any time.82
The Rainbow Coalition was prima facie a fragile entity for one main reason: It
was an umbrella alliance. Unlike an ordinary political party whose membership
comprises individuals (natural persons), the Rainbow Coalition admitted political
80 Nyong’o 2007, p. 116. Also see Kanyinga 2003, p. 122.

81 New York Times, 30 December 2002. Statistically, NARC won the presidential votes by
62.2 % against 31.3 % earned by KANU and 6 % by FORD People. In the parliamentary results,
while NARC won the majority by 125 seats, KANU got 64 seats and FORD People got 14 seats.
See Troup 2003a, pp. 4–7. See also Bakari 2002, p. 284; Nasong'o 2007, pp. 98–100.
82 Cf. Wanyande 2003, p. 151; Ndengwa 2003, pp. 157–158.
parties as members (partners). The parties that acceded to the Coalition retained their
identities and own members. As a result, although individuals contested the election
carrying the Coalition’s flag, their respective parties did not abandon their party inter-
ests, such as economic and ethnic demands, nor did they dissolve themselves upon
acceding to the coalition.83 This posed an obvious ‘danger’ that the political parties
forming the Rainbow Coalition could withdraw from the alliance any time if a disa-
greement occurred among them. Indeed this is exactly what happened.
The road to the disintegration of the Rainbow Coalition started with the failure
to honour the objectives and principles agreed upon in the agreements creating it.
One such principle was that the two sub-alliances forming the Coalition, the LDP
and the NAK, would be “equal partners”, and for that reason, the cabinet positions
would be shared equally between them.84 According to the formula that had been
agreed upon, a cabinet of 23 members, composed of 11 members from the two
sides, with Kibaki as the chair, would be created. However, Kibaki is accused to
have breached this agreement by appointing more members from his own side,
NAK, and also by disregarding many other aspects of the agreement.85 This elic-
ited criticism, caused frustration, dissatisfaction and feelings of betrayal and, more
detrimentally, led to the emergence of factions within the Rainbow Coalition.86
Responding to the criticisms raised, Kibaki’s side, allegedly made of “impenetrat-
able aides” nicknamed the “Mt. Kenya Mafia”,87 argued that the President was
exercising legitimate constitutional powers which could not be curtailed by politi-
cal or “secret agreements among power-hungry leaders”.88 This untrustworthiness
was the biggest fracture to befall the Rainbow Coalition’s foundation. The
Coalition’s actual disintegration followed in 2005 as described below.
2.4.2.3.2 Effect of the 2005 Constitution Making Process
The ultimate fall of the Rainbow Coalition was triggered by the 2005 attempt at ini-
tiating a constitution making process. The parties to the Coalition had agreed, inter
alia, that if they won the elections, they would see to it that a much needed new con-
stitution was adopted within 6 months.89 The background to this commitment is that
prior to the 2002 elections, a statutory body known as the Constitution of Kenya
Review Commission (CKRC)90 had done a survey and recommended an adoption
83 Elischer 2008, p. 20.

84 See Troup 2003b, p. 4. See also Kadima and Owuor 2006, pp. 179, 189 and 211.
85 Steeves 2006, pp. 230–231.
86 Ibid.
87 Ibid., p. 230.
88 Nyong’o 2007, pp. 116–117.
89 NARC’s Memorandum of Understanding, General Principle 11.
90 It was established under the Constitution of Kenya Review Act of 2000.
of a new constitution in Kenya.91 When the Rainbow Coalition was formed in 2002,
its members agreed wholeheartedly that if they won the upcoming elections, they
would pursue this agenda to its conclusion.92 In fact, this is believed to have been
the only policy issue which had bound the Rainbow Coalition together.93
Therefore, the expectation remained that the constitutional draft which was
supported widely by all Coalition members, as endorsed by them at Bomas of
Kenya (Bomas draft), would be subjected to a referendum. On the contrary,
instead of the Bomas draft, President Kibaki, through the then Attorney General
Amos Wako, endorsed an alternative draft, the Wako Draft, and put it to a national
referendum in 2005.94 The Bomas draft and the Wako draft differed fundamentally
on several critical aspects in respect of which Kenyans and members of the
Rainbow Coalition in particular had originally demanded reforms.
One such difference is that the Bomas draft had proposed an introduction of a
parliamentary system in which the president would only be the head of state, while
a prime minister with executive powers would be the head of government accounta-
ble to the parliament. In contrast, the Wako draft proposed that the existing presi-
dential system be retained, and consequently, the president would continue to be
head of both state and government. In addition, under the Wako draft, the prime
minister would be an appointee of the president and merely the head of government
business in parliament, but without any executive powers. Another key difference
between the two drafts is that the Bomas draft provided for a bicameral legislature
i.e. one with an upper house (senate) and a lower house (national assembly). The
Wako draft, on the other hand, provided for a unicameral legislature.95
Few months preceding the constitutional referendum witnessed an irreparable
disintegration of the Rainbow Coalition and a birth of new alliances. Both the
Rainbow Coalition and KANU, which was now an opposition party, experienced
inner-party factions (camps within the parties), which have been described as “pro-
reform forces” and “anti-reform forces”.96 The pro-reform and anti-reform camps,
respectively, opposed or supported the Wako draft Constitution which the govern-
ment decided to subject to a YES/NO referendum on 21 November 2005. The “no”
camp97 (pro-reformists), which was led by Raila Odinga, used an orange as their
91 See Report of the Constitution of Kenya Review Commission 2002.

92 The reforms proposed and highly demanded included, inter alia, the introduction of an execu-
tive Prime Minister, demotion of the presidency to a mere ceremonial post, establishment of two
chambers in the National Assembly and implementation of a county government structure. See
Constitution of Kenya Review Commission 2002, pp. 44–75.
93 Elischer 2008, p. 22.
94 Steeves 2006, p. 231.
95 For more details on the two drafts, see Chr. Michelsen Institute 2006.
96 See Tsuda 2010, p. 9.
97 The “No” camp brought together the LDP side of the NARC government, one faction of
KANU (under William Ruto) and the National party of Kenya (NPK) under Charity Ngilu. See
Elischer 2008, pp. 22–23.
symbol to campaign strongly against the government constitutional draft. The

Kibaki’s “yes” camp98 (anti-reformists), which used a banana as their symbol, cam-
paigned in favour of the referendum. In the end, the oranges (“no” camp) succeeded.
The government draft constitution was, therefore, rejected by the Kenyans.99
Thus, the constitutional reform agenda was not successfully accomplished as it
had been expected; it was put in further abeyance. But the constitutional referen-
dum signified a stamp on the death certificate of the Rainbow Coalition. The
reason is that subsequent to the referendum, and shortly before the 2007 elections,
the two camps in the referendum campaigns, the banana and orange camps, trans-
formed themselves into new political parties. Odinga’s “no” camp became the
Orange Democratic Movement (ODM), while Kibaki’s “yes” camp became the
Party of National Unity (PNU).100 It is these two political parties, the ODM and
the PNU, which, 2 years later, were principal participants in the 2007 presidential
election, Odinga and Kibaki being their respective candidates. And as will be
shown in Chap. 3, the two parties were at the centre of the ensuing post-election
violence, the main focus of this book.
2.5 Criminal Gangs, Election Violence and Impunity
2.5.1 Use of Criminal Gangs for Political Purposes
Apart from political alliances, the use of violence in the form of militias or crimi-
nal gangs is another relatively recent feature of the Kenyan politics since 1980s.
Subsequent to the re-introduction of political pluralism in 1991, politicians
resorted to sponsoring, creating or manipulating the already existing criminal
gangs to achieve their political ends through violence during each election. This
practice was first allegedly authored by KANU, being part of its so-called “ethnic
crusade” to eliminate or weaken opposition.101 Mueller observes:
In most cases these gangs were formed, aided, or abetted by the state’s security apparatus
and the provincial administration. Gangs of youth were organized by key KANU
politicians who were identified by names in both human rights reports and reports
produced by a government commission.102
98 The “Yes” camp comprised Kibaki’s side of the NARC government (i.e. the NAK) which
teamed up with other parties, the Democratic Party (DP), FORD-Kenya, FORD-People and one
faction of KANU under Uhuru Kenyatta. See ibid.
99 See Kenya GN No. 9510, 23 November 2005. The “no” vote won by 58 % while the “yes”
vote got 42 %. See “Kenya: 2005 Constitutional referendum results” http://www.eisa.org.za/WEP/
ken2005results.htm accessed May 2011), also see “Elections in Kenya” http://africanelections.
tripod.com/ke.html. Accessed August 2014.
100 Elischer 2008, p. 23.
101 Branch and Cheeseman 2008, p. 15.
102 Mueller 2008, p. 190.
2.5 Criminal Gangs, Election Violence and Impunity 35
Mungiki (a Kikuyu word for masses or multitude of people) is the largest and
most written about criminal gang. It started in the late 1980s under the disguise
of a Kikuyu religious movement,103 before it later assumed diverse cultural,
political and socio-economic dimensions.104 In terms of organization, the
Mungiki has been described as a “mafioso-style shakedown gang” with reliable
sources of income, a requirement for membership and a defined organizational
structure.105 In the 2002 elections it was allegedly “co-opted in a patron-client
relationship” by KANU and worked for the Kikuyu KANU’s presidential candi-
date, Uhuru Kenyatta.106 After the ouster of KANU in 2002, the Mungiki move-
ment rose to a full-fledged criminal gang increasingly engaging in violent
activities.107 Although in 2002 it was banned and its members were declared
persona non grata, the gang never disappeared from the scene, nor did the gov-
ernment succeed in dismantling it.108
There are other gangs which have emerged in various towns, being more active
during election periods. These include the Taliban (a Luo militia), Baghdad boys,
Jeshi la Mzee (the elder’s battalion), Jeshi la Embakasi (Embakasi battalion),
Kaya Bombo Youth, Chionkororo, Amachuma, The Rwenjes Football Club, the
Jeshi ya King’ole, and Jeshi la Mbela, Jeshi la Darajani, Bukhungu (Luhya
militia) Ghetto and Huruma Youth Group.109
It is in this context that in the 2007 post-election violence some of these gangs,
especially the Mungiki and the Luo Taliban, were allegedly used by politicians in
support of the Orange Democratic Movement (ODM) and Party of National Unity
(PNU), respectively.110
103 Claiming likeness to the Mau Mau movement, the Mungiki organization rejects Christianity
and advocates a restoration of the traditional African (Kikuyu) beliefs and practices. It administers
oath to its members. See Land Info 2010.
104 Ibid., pp. 5–6.
105 Mungiki became a gang for hire allegedly available to “the highest bidder”, politicians inclu-
sive. Literature shows that the relationship between Mungiki and the Moi-KANU regime devel-
oped strongly from mid 1990s on a quid pro quo basis. E.g., the gang offered its support to the
KANU candidate in the 2002 elections allegedly in exchange for arms and aid from the state
security forces and allocation of transport routes in the matatu (mini-buses for public transport)
business in Nairobi. The “bandit economy” of the gang was estimated to be USD 3.8 million per
year in 2004, mostly derived from, among other sources, the resale of hijacked cars and USD
58,000 per month from member subscriptions. See Katumanga 2005, pp. 512–515; Mueller
2008, pp. 192–193. It is estimated to have more than one million members. See Immigration and
Refugee Board of Canada 2006–2007.
106 See Kagwanja 2005, p. 59; Katumanga 2005, p. 513. For more details on the role of Mungiki
during Moi’s era, see Kagwanja 2007, pp. 25 et seq; Rasmussen 2010, pp. 435 et seq.
107 See Kagwanja 2005, pp. 65–66. Also see Frederiksen 2010, pp. 1065 et seq.
108 Mueller 2008, p. 193. See also Atieno 2007 p. 527.
109 Branch and Cheeseman 2008, p. 15; Katumanga, 2005, pp. 512–513; Kenya National
Commission on Human Rights 2008, p. 47, para 161; Mueller 2008, pp. 193–194.
110 Kenya National Commission on Human Rights 2008, paras 159–216.
2.5.2 Trends of Election Violence
It can be asserted that the 2007–2008 post-election violence was not a total sur-
prise to Kenyans. The preceding multiparty elections were also characterized by
politically and ethnically sponsored violence.111 It is alleged that during his
presidency Moi and his ruling party KANU actively aided such kinds of vio-
lence to fulfil Moi’s “prophecy” that the re-introduction of multipartysm would
increase tribal animosity, polarize the nation and destroy peace and co-exist-
ence. To prove this, KANU is accused of having applied deadly tactics in differ-
ent parts of the country, including incitement to ethnic cleansing through
stereotyping people from certain ethnic communities.112 Human Rights Watch
uses the title “echoes of Rwanda” in trying to describe what usually happened.
This is not, however, to equalize Kenya to Rwanda, but simply to point out the
parallelism and close resemblance between the tactics employed to bring to fru-
ition the 1994 Rwandan genocide and those used to cause violence in Kenya
mostly during elections. For instance, as regard the violence that followed
Kenya’s 1997 general elections, Human Rights states:
As in pre-1994 Rwanda, Coast politicians [in Kenya] exploited ethnic divisions to
preserve and expand their own power. They blamed a group of perceived outsiders
whose ethnic identity was taken as an indicator of their support for the political opposi-
tion….politicians mobilized supporters to carry out acts of targeted violence….They
began with political attacks … to kill the designated “enemy.” The killers … depended
on guidance from their political leaders, as well as the expertise of highly trained and
well-armed military leaders. Their ability to target and wipe out their victims was
greatly increased by the use—even the mere possession—of firearms. In essence, the
strategy of the Coast killings, as well as the Rwanda slaughter, hinged on two factors:
the manipulation of ethnic divisions into ethnic hatred for political ends and the
organization and arming of groups of supporters who could execute or orchestrate
widespread killings.113
The violence accompanying all multiparty elections prior to those of 2007 had,
apart from its general political dimension, assumed ethno-regional patterns.114 The
land ownership is among the factors that played (and continues to play) a central
role in these incidents of violence. Land disputes, which had been there since inde-
pendence, worsened with the animosity instigated by politicians playing the ethnic
card. People with political connections, mostly the allegedly “over-privileged
Kikuyus”, were (and still are) accused of corruptly obtaining and holding huge
pieces of land, mostly in the Rift Valley Province, which is not their ancestral
111 Human Rights Watch 2008, p. 11.

112 Kiage 2004, p. 106.
114 Kenya National Commission on Human Rights 2008, p. 47, para 159. Also see Orvis 2001,
p. 8 (describing the Kenyan politics as arguably the “most ethnic in Africa”).

land.115 For example, it is alleged, although this could be an exaggeration, that the
family of Kenya’s first President Jomo Kenyatta alone owns more than 30 per cent
of all the land in Kenya.116
A commission of enquiry formed after the 2002 elections (Ndung’u
Commission) found that “most illegal allocations of public lands took place before
or soon after the multiparty general elections of 1992, 1997 and 2002”.117 This
finding, therefore, makes the timing of the ethnic violence in Kenya noteworthy: it
occurred in the period immediately preceding or following general elections. The
reason is that although the issue of land pressure caused by the so-called “land
grabbing” raises genuine complaints, it has, over time, been used (abused?) by
politicians as a campaign tool, and in so doing, it has caused or intensified hatred
of local people towards people from other ethnic groups owning land in their
areas, considering them as “invaders” and accusing them of benefiting from land
which originally or traditionally did not belong to them.118 Campaigning on the
land question usually gives the impression to the local people that if such politi-
cians are elected, they could help the traditional inhabitants in the areas to reclaim
their land from the “invaders” or “grabbers” from other ethnic communities.
On the basis of the foregoing historical context, it has been stated that even the
approaching 2007 elections were also expected to “reshape national space, and to cre-
ate ethnically cleansed regions”.119 Katumanga describes this as the desire of the
political elite “to act, manoeuvre and manipulate social formations against each other
that enhance [their] freedom of choice in deciding who to back or displease”.120 This
desire did not start with the 2007 elections. Prior to and after the first multiparty gen-
eral elections in 1992, a widespread violence orchestrated by the Kalenjin in the Rift
Valley province targeted members of other ethnic communities, mostly the Luo,
Kikuyu, Luhya and Kisii, who were perceived as opposing president Moi and his
ruling party KANU.121 The aim of the attackers was to expel the so-called “hostile
115 Human Rights Watch 2008, pp. 12–15. It is said that while the Kikuyus migrate largely for
commercial farming and business purposes, thereby breaking links with their original homes, the
other communities migrate mainly as workers while maintaining links with their rural homes.
Arguably, this nature of the Kikuyu has made them “obvious candidates for discrimination and
detestation by those whose property or territory (land in particular) they have been accused of
“invading”. See Oucho 2002, p. 58.
116 See Kenya Today, 27 February 2013. NB. When asked this question in a televised presi-
dential debate in 2013, Uhuru Kenyatta, the presidential candidate for the Jubilee Alliance, did
not expressly accept or deny this allegation. Instead he only insisted that all the land that the
Kenyatta family owns was acquired legally on a “willing-buyer-willing-seller basis”. See second
presidential debate [full video], NTV Kenya, published 25 Feb. 2013 http://www.youtube.com/
watch?v=DoBo86ttZCo. Viewed September 2014.
117 As quoted verbatim in Southall 2005, pp. 142–151.
119 Taussig-Rubbo 2011, p. 65.
120 Katumanga 2005, p. 506.
121 Kenya National Commission on Human Rights 2008, para 45.
tribes” from the Rift Valley area.122 Specifically, it was demanded that “those Kikuyu
settled in the Rift Valley [were “invaders”, and] would have to pack up and return to
Central Province”.123 Similarly, during the 1997 elections, widespread attacks
occurred in a more organized fashion. Apart from the Rift Valley Province, this par-
ticular violence spread to the Coastal Province and other areas.124
Estimates by Africa Watch indicate that during the 1992 election violence,
about 1,500 people died and about 300,000 others were internally displaced.125
These figures pertain to the Rift Valley Province only, and do not include consider-
able incidents of retaliatory attacks against the Kalenjin in other areas.126
Similarly, estimates by Human Rights Watch indicate that during the 1997 elec-
tions the accompanying violence claimed at least 2,000 lives and displaced over
400,000 people countrywide.127 Literature further indicates that the 2002 elections,
too, were accompanied by some violence on a smaller scale (when compared to
the previous two elections), but no exact figures or estimates could be found.
Based partly on the foregoing, the Kenyan National Commission on Human
Rights (KNCHR) is of the view that one of the factors that differentiated the
2007–2008 post-election violence from the violence that occurred in the preceding
three general elections was its magnitude and level.128 This could be correct in
terms of the scale of destruction of property, sexual crimes and geographical wide-
spreadness. But from the figures given above, one can conclude that regarding loss
of life and displacement of people, the election violence of 1992 and 1997 had
comparable dimensions with the 2007–2008 post-election violence.129
Nevertheless, the 2007–2008 violence remains unique in that it received a particu-
lar attention beyond Kenyan borders, as it was the first time in the history of
Kenya that an election violence attracted external intervention, particularly in the
form of the AU’s mediation process and the intervention by the ICC.
2.5.3 Commissions of Enquiry and Culture of Impunity
If history is anything to go by, then it would not be wrong to contend that to most
Kenyans the 2008 Commission of Inquiry into the Post-Election Violence130 was
not necessarily expected to be a panacea for impunity at the domestic level. There
122 Ibid., para 44. See also National Christian Council of Kenya 1992, p. 3.
123 Klopp 2002, p. 274; Oucho 2002, pp. 86–89.
125 Ibid., para 45. See also Africa Watch 1993, p. 1.
126 Africa Watch 1993, pp. 27–37.
127 Human Rights Watch 2002, p. 21 Kiage 2004, p. 107.
129 See infra Sect. 3.2.2 in relation to the magnitude of the 2007–2008 violence.
130 See infra Sect. 3.4.1.
are historical explanations to this contention. Prior to this particular Commission,

the Kenyan government had set a bad precedent, portraying Kenya as state that
was indifferent about or condoned commission of serious crimes to encourage
impunity. Whenever serious human rights violations occurred, the government
would form commissions of enquiry to look into them, mostly due to public outcry
for accountability. For example, from 1963 to 2008, a total of 25 commissions of
inquiry or bodies similar to them were established to deal with a broad range of
issues of great concern to Kenyans.131 Mostly, such issues included land griev-
ances, murders, political assassinations, political/election violence, grand corrup-
tion, politically-instigated ethnic cleansing and other incidents of gross human
rights violations.132 For purposes of this study, the most relevant commissions are
those that looked into political, ethic or election violence during which serious
violations of human rights occurred.
For example, the parliamentary select committee (famously known as the
Kiliku Committee) was formed after the 1992 elections to investigate ethnic
clashes accompanying these elections. In its final report, the Committee concluded
that the violence in the Rift Valley Province, for example, had been instigated and
sponsored by senior politicians from the ruling party KANU and Moi’s govern-
ment.133 A similar finding would later be made by a fact-finding mission deployed
to Kenya by the United Nations Office of the High Commissioner for Human
Rights which concluded that the 1992 election violence was organized under a
central command involving local administrative and security officers.134 The
Kiliku inquiry was followed by a judicial commission of enquiry (famously
known as the Akiwumi Commission) formed after the 1997 election violence to
inquire again into the tribal clashes in Kenya. This commission, too, made similar
findings like those of the Kiliku Committee.135
In their findings, these commissions made accusations by identifying and
expressly naming individuals, including high-profile politicians and government
officials, who, allegedly, were responsible for funding, supporting or committing
the crimes. The commissions recommended further investigations and prosecution
of the individuals so adversely mentioned.136 Despite all these findings and recom-
mendations, neither political nor criminal accountability followed. Most of the
politicians accused in the commissions’ reports enjoyed state protection, as they
131 Africa Centre for Open Democracy 2007; Kisemei and Kimani 2010.
132 See Kituo cha Katiba 2007.
133 Republic of Kenya 1992. Also see Kenya National Commission on Human Rights 2008,
para 46.
134 UN Office of the High Commissioner for Human Rights 2008, p. 6.
135 For its report, see Republic of Kenya 1999.
136 E.g. see Appendix “G” of the Akiwumi Commission Report which contains a list of 189
persons adversely mentioned and notified as suspects of ethnic violence in various places. For a
long list of names of people expressly accused by various commissions as perpetrators of various
crimes, including economic crime, murder, political assassinations, etc., see Kisemei and Kimani
2010, pp. 6–26.
continued to serve in the Moi’s and later Kibaki’s governments.137 Instead of taking
legal measures, the Moi regime is alleged to have labelled the violence as “ordinary
insecurity”. This, according to the Kenyan National Commission on Human Rights,
was nothing but state’s effort to subsume crime into the political violence, appar-
ently in order to justify impunity.138 That is why even a few people arrested in
connection with these incidents of violence were soon released unconditionally.139
Given the tendency above, ordinary citizens, as well as politicians, usually con-
sider such commissions as toothless dogs which do not bite. For example, the Waki
Commission formed to look into the 2007–2008 post-election violence (see infra
3.4.1) reported that many of its respondents expressly stated that the commission,
just like all other commissions formed before it, was “a waste of time and
resources”, because its recommendations “would never be implemented”.140 The
paragraph quoted below echoes similar views, underscoring how, prior to the 2007
elections, impunity had already become the rule rather than the exception in Kenya.
The paragraph is reproduced from the contribution of Ms Esther Murungi Mathenge,
MP for Nyeri Town constituency, during the parliamentary debate on the Motion for
the establishment of yet another commission, the Truth, Justice and Reconciliation
Commission141 so established also in response to the 2007–2008 post-election vio-
lence. The MP lamented:
We have had the same incidents, although not of the same magnitude. One was in 1992,
another in 1997, a minor one in 2002 and the major one in 2007. In the past, after such
incidents occurred, we formed commissions. We formed the Akiwumi Commission.
However, what did we do with it? We put it under the carpet. We also formed the Ndung’u
Commission … What did we do with the Ndung’u Commission Report? We also put it
under the carpet.142
Thus, prior to 2007, the culture of impunity had already grown roots to become,
one could contend, an entrenched feature in Kenya, especially in relation to crimes
committed in connection with grand corruption or gross human rights violations,
including those accompanying election violence. It is due to this nurtured and
deep-rooted impunity that, in 1998, the Law Society of Kenya (Bar Association)
wrote a letter to the then UN Secretary-General, Kofi Anan, calling for an inde-
pendent UN-led investigation and establishment of an ad hoc tribunal to punish the
perpetrators of “genocide and crimes against humanity” that had allegedly
occurred in Kenya.143 This, however, did not materialize. At this juncture, it
suffices to say that had Mr. Anan foreseen that 10 years later he would be asked to
137 Kisemei and Kimani 2010, p. 10.

139 UN Office of the High Commissioner for Human Rights 2008, p. 6.
141 See Chap. 5.
142 See Parliament of Kenya 2008. For similar sentiments by expressed in Parliament by other
MPs, see Parliament of Kenya 2010.

143 Kiage 2004, p. 107.
mediate in a similar violence in Kenya (see infra 3.3), this time not in his capacity
as UN Secretary-General, but as the head of AU’s mediation team, he would have
probably reacted to the request differently.
2.6 Chapter Summary
In this chapter the historical and sociological dynamics of Kenyan politics prior to
the 2007 general elections have been presented. The chapter has shown that, under
the first two Presidents (Kenyatta and Moi), the Kenyan politics was dominated by
authoritarianism. And since the resumption of multiparty democracy in 1991, the
politics became dominated by proliferation of political parties, short-lived political
alliances and use of criminal gangs for political gains. At all times negative ethnicity
has been the common denominator. Consequently, negative ethnicity has been one of
the main reasons for the recurring ethno-political violence, mostly during elections. A
pattern of electoral violence, entailing the commission of serious gross human rights
violations, can be clearly established with regard to the multiparty elections of 1992,
1997 and 2002. The fact that no accountability measures were ever taken against the
main perpetrators (mostly politicians) of such violence in the past was a precursor of
the violence that would happen in the upcoming 2007 general elections. What had
not been foreseen, however, was the fact that the violence accompanying the 2007
elections would, unlike the one accompanying the previous elections, greatly attract
the attention of the international players, particularly the AU and the ICC.
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Part II
Post-Election Violence, Domestic
Legal Options and Responses
Chapter 3
The Post-Election Violence and Immediate
Aftermath
Abstract In the aftermath of the 2007 general elections in Kenya, widespread

violence erupted. Subsequent inquiries by various commissions concluded that
serious human rights violations, some of which amounting to crimes against
humanity, had been committed, and that Kenya was duty-bound to investigate,
prosecute and punish those responsible. This chapter describes the various aspects
of the violence, and analyses the findings and recommendations of such inquir-
ies, the main focus being the nature of the ensuing crimes and the agreed road
map for domestic criminal accountability. It shows that the attempts to create a
special tribunal for Kenya, which was at the core of the aforementioned road map,
failed, and that such a failure resulted mainly from the lack of a political will at
the domestic level. Most of the political elite favoured impunity, thereby frus-
trating the initiatives to implement the road map. However, the perception of the
Kenyan civil society organizations and ordinary citizens remained that the crimes
must not go unpunished, and that to achieve this, the masterminds of the violence,
mostly politicians, must be prosecuted by an externally controlled judicial process,
preferably the ICC.
Contents
3.2 The Violence........................................................................................................................ 49
3.2.1 Immediate Trigger...................................................................................................... 49
3.2.2 Extent, Organization and Nature................................................................................ 50
3.2.3 Incitement to Violence................................................................................................ 54
3.3 Mediation Process................................................................................................................ 56
3.4 Inquiries into the Violence and Road Map for Criminal Accountability............................. 57
3.4.1 Commission of Enquiry into the Post-Election Violence........................................... 57
3.4.2 Other Inquiries............................................................................................................ 58
3.4.3 Findings of the Inquiries: Were Crimes Under International Law Committed?......... 59
3.4.4 Agreement and Recommendations Pertaining to Criminal Accountability............... 63
3.5 The Proposed Special Tribunal for Kenya: An Overview.................................................... 66

48 3 The Post-Election Violence and Immediate Aftermath
3.5.1 Salient Features of the Tribunal.................................................................................. 67

3.5.2 Evaluation................................................................................................................... 69
3.5.3 Failed Attempts to Establish Special Tribunal............................................................ 72
3.6 Consequences of Failure to Create the Proposed Special Tribunal..................................... 74
3.7 Where to Prosecute the Big Fish? General Domestic Perceptions...................................... 75
3.8 Chapter Summary................................................................................................................ 80
References................................................................................................................................... 81
Kenya’s fourth multi-party general elections were held on 27 December 2007.1

Three presidential candidates, namely Mwai Kibaki, Raila Odinga and Kalonzo
Musyoka, commanded significant popular support,2 mostly from their respec-
tive ethnic communities.3 The management of the electoral process was
entrusted to the then Electoral Commission of Kenya4 whose members had
been appointed by the President.5 As it prepared to manage the 2007 elections,
the electoral commission had significantly lost the confidence and trust of many
Kenyans.6 This mistrust resulted partly from the fact that President Kibaki, who
himself was not only a candidate in the elections but also a leader of a
contesting political party, had a de jure discretion in appointing the members of
the commission.7 Therefore, even prior to the election date, scepticism and
suspicion had already started to mount.
1 These were presidential, parliamentary and civic elections. In total, there were nine
p residential candidates, 2,548 candidates contesting for 310 parliamentary seats and 15,332
candidates contesting for 2,500 civic local authority seats. See Commonwealth Secretariat
2008, p. 28.
2 Kibaki and Odinga had almost equal amount of support. Two weeks before the elections, opin-
ion poll showed that the two were “virtually tied”, commanding 44 and 43 % of support, respec-
tively. See East African Standard, 19 December 2007; Gallup, 17 December 2007.
3 See United Nations High Commissioner for Human Rights 2008, p. 7. E.g., a poll revealed that
“93 % of registered Luo voters planned to vote for Odinga, a Luo; 92 % of Kikuyus to vote for
Kibaki, a Kikuyu; and 78 % of Kambas were for Musyoka, a Kamba”. See Gallup, 21 November
2007.
4 See Constitution of Kenya of 1963, Article 41.
5 No legal criteria were laid down for the President to follow in appointing of commissioners,
save for the Chairman and Vice Chairman who were only supposed to be individuals with quali-
fications equal to those of High Court or Court of Appeal Judges. The President could also cancel
the appointment of any commissioner by forming a five-member tribunal of his choice to advise
him accordingly. See Ibid.
6 E.g., such confidence had dropped from 60 % in 2006 to only 24 % in 2008. See Gallup 30
October 2008.
7 See Kenya National Commission on Human Rights 2008, para 57; Republic of Kenya 2008b,
pp. 30 and 31.

3.2 The Violence 49
3.2 The Violence
3.2.1 Immediate Trigger
Prior to the election date, during the campaigns, some isolated incidents of vio-
lence had occurred, which reportedly claimed the lives of 70 people and displaced
2,000 others.8 But the “post-election violence” per se commenced on 30
December 2007, the day on which the Kenya Electoral Commission announced
Mwai Kibaki the winner of the just concluded presidential election.9 Following
this announcement, tensions arose, as allegations emerged that there had been
large-scale rigging of the election, mostly levelled against the Party of National
Unity (PNU), Kibaki’s party alliance.10
Two main factors stirred the tensions. The first factor was the controversy con-
tained in the utterances of the Chairman of the electoral commission, Samuel
Kivuitu. He declared publicly that although it was he who had announced the presi-
dential results, he “could not say for sure if Kibaki had won fairly”.11 He said that
he announced the results “under pressure”12; and that he did not have “full control”
of the electoral commission.13 The second factor that intensified the tensions is the
reports of different domestic and international official election observers. These
observers stated categorically that the presidential vote counting and tallying pro-
cesses were flawed or had been tempered with.14 As a consequence, the general
public also perceived the whole presidential election as dishonest.15 As part of this
uproar, different demands and calls were made, including, for example, calls for a
ballot re-count.16 Also, there was a demand by the Kenya Law Society (Bar
Association) that Kibaki should step down immediately for lack of legitimacy.17
8 See Kenya National Commission on Human Rights 2007, p. 6.

9 According to the official results of the Electoral Commission, in the presidential election,
Kibaki garnered 4,584,721 votes (46 %), Raila Odinga 4,352,903 votes (44 %) and Kalonzo
Musyoka (ODM-Kenya) 879,903 votes (9 %). In the parliamentary elections, the ODM
got 99 seats, PNU (43 seats), the ODM-K (16 seats) and KANU (14 seats). See International
Republican institute 2007, pp. 41–50.
10 E.g., see BBC News, 8 January 2008; BBC News, 31 December 2007.
11 BBC News, 8 January 2008; Lynch 2009, p. 1.
12 African Press International, 12 January 2008; The Standard, 2 January 2008.
13 The Citizen, 30 December 2011.
14 See, e.g. East African Community Observer Mission 2008; European Union Election
Observation Mission 2008; International Republican Institute 2008, pp. 31–34; Kenya Elections
Domestic Observation Forum 2007; Kenya Human Rights Commission 2008; Kenyans for
Peace with Truth and Justice 2008; Pan-African Parliament 2008; Republic of Kenya 2008b,
pp. 115–138.
15 See Gallup, 30 October 2008.
16 See Kanyinga 2011, p. 97.
17 See Law Society of Kenya 2008.
Somehow Odinga’s party, the Orange Democratic Movement (ODM), which

had lost the election marginally, capitalized on the allegations made by these neu-
tral observers to justify and consolidate its own claim that its victory had been
“stolen”. The Kenyan Constitution had a clear legal mechanism which could be
used to challenge the announced presidential results in the High Court,18 but the
ODM denounced this mechanism publicly, alleging that the existing judiciary was
not capable of rendering “impartial justice”.19 Instead, the ODM resorted to a
“mass action” strategy, envisioning protests and demonstrations country wide. As
part of this strategy, they also threatened to swear in Raila Odinga as the “people’s
president” if Kibaki did not agree to a re-run.20
These events led to confrontations between the supporters of the two parties,
which escalated into ethnic clashes that plunged a big part of the country into the
bloody violence.
3.2.2 Extent, Organization and Nature
The extent and magnitude of the physical violence was formidable. The violence
took the form of attacks on civilians, involving acts which were prima facie crimes
under the laws of Kenya. Official figures indicate that 1,133 people were mur-
dered, 3,000 were raped and 350,000 others were internally displaced. Moreover,
there were 3,561 incidents of grievous bodily injuries and 117,216 incidents of
destruction of properties, including 41,000 houses.21 Six provinces, namely Rift
Valley, Nyanza, Central, Western, Nairobi and Coastal provinces, were most
affected, but in varying degrees.22 About 66 % of the deaths occurred in Rift
Valley, 12 % in Nyanza and 11 % in Nairobi.23
Initially, the violence manifested itself merely as demonstrations to protest
against the results which had just been announced. This was partly the immediate
response to the “mass action” strategy called for by Odinga’s party.24 As such, it
18 See Articles 10 and 44 of the Constitution of Kenya of 1963, read together with ss. 19–23 and
28–30 of the National Assembly and Presidential Elections Act (R.E 2009).
19 Specifically, Odinga’s party, ODM contended that it was “not possible to receive justice from
a partisan judiciary that was known to subvert justice in electoral matters”; and that President
Mwai Kibaki’s appointment of new judges 2 days before the elections was done in “preparation
for a biased consideration of the anticipated election petitions”. See Kenya National Commission
on Human Rights 2008, para 58; Republic of Kenya 2008b, p. 59. For a critical examination of
the appointment and functioning of the then Kenyan judiciary see Mutua 2001, pp. 96 et seq.
20 See Kenya National Commission on Human Rights 2008, paras 78 and 121.
21 Republic of Kenya 2008a, pp. 345–352; Roberts 2009, p. 2.
22 Kenya National Commission on Human Rights 2008, p. 34.
23 See Republic of Kenya 2008a, p. 341. Also see UN Office of the High Commissioner for
Human Rights 2008.

24 Republic of Kenya 2008a, pp. 346 and 347.
3.2 The Violence 51
involved either confrontations between PNU and ODM demonstrators, or between

the demonstrators of these two parties and the Kenyan police, for example, in the
Nairobi slums, Kisumu and Nakuru.25
However, subsequently, the violence soon acquired a pattern of massive attacks
and retaliatory attacks directed against specific groups of people or their proper-
ties, the basis being, inter alia, victims’ real or perceived political inclination, or
their regional or ethnic origin or affiliation. This included, for instance, prior issu-
ance of warnings to the victims; mobilization, acquisition, transportation and dis-
tribution of weapons;26 barricading of roads in order to identify, kill or generally
attack travellers from the “enemy” communities;27 and taking of oath by youths to
fight and kill, which oath was administered by tribal elders.28 In some areas, such
as Rift Valley, there was, allegedly, a prior marking or identification of specific
homes and premises belonging to non-Kalenjins. The prior identification aimed at
ensuring that the subsequent unleashing of attacks would only be directed against
the properties of the “enemy” communities (non-Kalenjins) in that area.29
The underlying cause of the tribal violence was a clear nexus with long-time
unresolved tribal land issues and negative ethnicity which had always been used
by politicians to incite more divisions.30 It was also fuelled by the general percep-
tion that since independence certain ethnic communities had been marginalized in
various aspects because, among other things, they had not had their tribesman to
lead the country. For instance, in the Rift Valley Province, a stronghold of the
ODM during the 2007 elections, the violence targeted the “unwanted” communi-
ties, the Kikuyu (Kibaki’s tribe) and other non-Kalenjin communities or groups,
which were or were perceived to be PNU supporters.31 Allegedly, the local politi-
cal and traditional leaders, who were partly interested in settling their communi-
ties’ long-standing grievances pertaining to land and other real and (or) perceived
discrimination against the targeted victims, were largely involved.32
In retaliation, in the Central Province and Nairobi, which were PNU’s strongholds,
the Kikuyus, through their militia gang, Mungiki, attacked the Luos (Odinga’s tribe)
and Kalenjins, who were or were perceived to be ODM supporters.33 Similarly, the
armed Mungiki carried out attacks in Nakuru against “enemy” communities, inter
alia, by beheading Luo men or forcefully circumcising them by using pangas and
25 See Republic of Kenya 2008a, p. 96; UN Office of the High Commissioner for Human Rights
2008, pp. 8 and 9.
26 Republic of Kenya 2008a, p. 347.
28 Ibid., paras 214, 307, 331, 523 and 537.
29 Ibid., para 204.
30 See Ibid., pp. 16–27. Also see Human Rights Watch 2008a, pp. 11–20; Republic of Kenya
2008a, pp. 20–36; UN Office of the High Commissioner for Human Rights 2008, pp. 5–7.
32 UN Office of the High Commissioner for Human Rights 2008, pp. 9 and 10.
33 Ibid., p. 3.
broken bottles.34 In preparation for these attacks, prior plans had reportedly been in
place, including one for allegedly recruitment of 300 new members into the Mungiki
specifically for this task. Moreover, intelligence reports revealed that local leaders
and Kikuyu businessmen in Nakuru had conducted fund-raising meetings to raise
money for financing the revenge or attacks against the Luo, Luhya and Kalenjin.35
Not all atrocities in this violence resulted from civilians attacking fellow civilians.
The role of the police during the violence is noteworthy. It has been reported that,
generally, the role of the police in this respect oscillated between being praiseworthy
and blameworthy. For example, it is said that in Rift Valley, the outbreak of the vio-
lence was so sudden that it caught the police “totally unprepared”, and that they were
consequently “overwhelmed” by the number of Kalenjin attackers.36 The reaction of
the police in this area has been described as “chaotic”—one in which some police
officers joined the attackers, while others “bravely saved lives”.37
However, evidence points to the police being implicated in some of the atrocities.
It is common knowledge that the principal function of the police in any jurisdiction is
to ensure the safety of citizens and their properties. On the contrary, some of the
members of the Kenyan police force are accused of having participated directly in the
commission of crimes during the violence by, inter alia, using excessive force. They
also allegedly participated by omission, which indirectly encouraged the civilian per-
petrators to commit the atrocities.38 As it has been rightly noted, this has cast doubt
on the contention that “the post-election violence was a citizen-to-citizen violence”.39
For example, the Waki Commission (see infra Sect. 3.4.1) found that about
80 % of all deaths through gunshots in Nyanza and Western Provinces were
caused by the police.40 Although there were claims that guns had been acquired
and distributed to the ordinary citizens for the purposes of the violence, the
Commission concluded that country wide, all recorded gunshots leading to deaths
or injuries were reported to have come from the police.41 Members of the police
force were also allegedly involved directly in sexual violence, 26 % of all reported
rape cases against women having been allegedly committed by police officers.42
Furthermore, both Human Rights Watch and the Waki Commission made three
serious allegations against the police in connection with the post-election violence.
First, it is alleged that there was an unofficial “shoot to kill” policy that was being

35 Ibid., pp. 105, 106 and 117.
36 Ibid., p. 89.
37 Ibid., p. 76.
38 See Ibid., pp. 89–91; UN Office of the High Commissioner for Human Rights 2008,
pp. 10 and 11.

40 Human Rights Watch 2008a, p. 27; Ibid., pp. 342–343.
42 See Human Rights Watch 2011a, p. 22. For detailed information on members of the security
agencies as perpetrators of sexual violence, see Heinrich Böll Stiftung 2009; Republic of Kenya
2008a, pp. 252–257.
3.2 The Violence 53
implemented; second, that there was a manifestation of politicized commands

which entailed, inter alia, non-interference whenever pro-government mobs com-
mitted crimes against the opposition (suggesting that the leadership of the police
force was pro-PNU); and third, that there was “inaction” on the part of the police
whenever complaints from victims were received in Molo, Naivasha and Eldoret,
where the police allegedly sided with the perpetrators.43 Allegedly also, the police
did not take any pre-emptive action in Nakuru, even though they had prior infor-
mation of some planned attacks.44 In the Coastal province, the police allegedly
engaged in a kind of a “loot-but-don’t-kill policy”, inferred from their failure to
intervene, allegedly even when they were “clearly available and present”.45
All the atrocities committed during the post-election violence were indisputa-
bly shocking and horrendous. However, some specific incidents that occurred have
been referred to as “most tragic” or “most terrifying”, while others have specifi-
cally been most cited in the literature or widely reported by the media. This is due
to the gruesome manner in which these particular incidents were carried out, the
number or type of victims involved, etc.
One such incident happened in Kiambaa area in Rift Valley province. On 31
December 2007, between 200 and 3,500 armed Kalenjin members raided and
torched the Kiambaa settlement area in Eldoret, predominantly inhabited by
Kikuyus. The residents were forced to flee. Some of them sought refuge in a church
building in the locality, the only place they considered safe in the circumstances. On
New Year’s Day 2008, the raiders set the church on fire. About 35 people, mostly
women and children, died in the fire, 50 were severely wounded, and seven others,
who tried to escape, were hacked to death.46 A similar incident happened on 27
January 2008 in Naivasha. Some organized members of the Mungiki, targeting Luo
properties, burnt a house belonging to a Luo in which 19 people, including women,
children and two infants, died.47 Another incident involved a catholic priest, Michael
Kamau (a Kikuyu), who was killed by Kalenjin attackers on 26 January 2008 at a
road block. The priest was travelling from Nandi to Nakuru and on the way helped
two persons who were fleeing the violence by giving them a lift in his car.48
There were many other well-documented incidents of a similar nature that
involved shocking civilian-to-civilian violence.49 But what is indisputably clear is
that this violence was “more than a mere juxtaposition of citizen-to-citizen
43 Human Rights Watch 2008a, p. 25. Cf. Republic of Kenya 2008a, p. 421.
44 Republic of Kenya 2008a, pp. 108–112 and 424.
45 Ibid., p. 424.
46 See Human Rights Watch 2008a, p. 41 and Kenya National Commission on Human Rights
2008, paras 237–243.

47 See Human Rights Watch 2008a, pp. 45–47.
48 Ibid., p. 94.
49 See Ibid., pp. 35–56; Kenya National Commission on Human Rights 2008, Chapter 4 (see
esp. illustrative text boxes at pp. 44, 55, and 87); Republic of Kenya 2008a, Chapters 3–6.
opportunistic assaults”. Rather, it entailed coordinated or organized attacks on

civilians “based on their ethnicity and political leanings”.50 Thus, the ethnic or
political affiliations of both the perpetrators and the victims mattered.
3.2.3 Incitement to Violence
Various incidents and statements that were prima facie incitement to violence
were reported, mostly in the Rift Valley and Central provinces. Similarly,
attempted ethnic cleansing (see infra Sect. 3.4.3.1) was reported. In the Rift Valley
province, whose original inhabitants are Kalenjins, the Kikuyus and non-Kalenjins
in general were (still are) viewed as “invaders” on the land.51 Among other rea-
sons, most Kalenjins in this area supported the ODM in the 2007 elections appar-
ently believing that its victory would enable them reclaim their “stolen” land.52 As
a result, hate speech from local politicians, tribal leaders and a section of the
media dominated against the “alien” tribes in the area, mostly against the Kikuyu.
The Kalenjin local leaders allegedly told their people to “remove the roots”, and
that they had “a snake (Kikuyus) to get rid of”.53 Allegedly, high-profile ODM
leaders, including Raila Odinga and William Ruto, once asked the Kalenjin com-
munity to remove all “madoadoa” (stains) from “Rift Valley”.54
One should not at all ignore the role of vernacular radio stations (broadcasting
in tribal languages) in inciting the violence. Arguably, their role could be similar to
that of the Kigali-based Radio, Télévision Libre des Milles Collines, which was
used in inciting the Hutus against the Tutsis during the Rwandan genocide of
1994.55 Reference to vernacular radio stations here excludes the mainstream
national media, which comprise newspapers, radio and television stations broad-
casting in English and Kiswahili, Kenya’s official languages. This category of
media, the English and Kiswahili media, is usually not aimed for listeners or read-
ers from one specific ethnic group or region. Thus, media in this category has been
absolved from accusations of any negative role in the violence.56
The role of four vernacular radio stations, namely KASS FM (Kalenjin station),
Inoor and Kameme (Kikuyu stations) and Lake Victoria FM (Luo station), was par-
ticularly most notorious in spreading the hate speech. These stations did not
50 Republic of Kenya 2008a, p. vii.

51 Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, para 264.
52 But note that Kenya had been under a Kalenjin President (Moi) for 23 years, but the Kalenjins
had not been able to “reclaim” their “invaded” land.

53 Human Rights Watch 2008a, p. 36.
54 See Republic of Kenya 2008a, p. 92.
55 IRIN News, 22 January 2008.
56 See Fackler et al. 2011 for a detailed analysis of the role of the Kenyan media during the
violence.
3.2 The Violence 55
necessarily disseminate hate speech directly through their presenters. Rather, they
are blamed for having indirectly sanctioned or condoned the hate speech by reck-
lessly or intentionally failing to prevent their guests or calling listeners from doing
so.57 For example, KASS FM is accused of having aired several appeals by Kalenjin
callers carrying connotative implications for “people of the milk” (the Kalenjin) to
“cut grass” (i.e. clear the land by removing the Kikuyus) and “reclaim our land”.58
In its call-in programmes, callers also referred to the Kikuyus in the Rift Valley
province as “settlers”, “mongoose [that] has come and stolen our chicken”; and also
talked about the need to “get rid of the weeds”. The Luo station, Lake Victoria FM,
is alleged to have played a song with a metaphorical reference to the “leadership of
baboons”, insinuating the leadership by Kikuyus (Kibaki). Kameme FM on its part
played a derogatory Kikuyu song about “the beasts from the west”, connoting the
tribes from Western and Nyanza provinces, including Luos.59
Other means were also used to disseminate hate speech and incitement to per-
secute the targets. For example, text messages and leaflets were distributed in
Western Province urging all the “Mount Kenya mafia”60 to leave the area. One
quoted leaflet read:
Notice to all landlords. Please take note that no Mount Kenya Mafia is your tenant lest
you face the consequences. Avail quit notices to them immediately with no hesitation.
Comply immediately!61
A text message which allegedly circulated among the Kikuyus in Nairobi in mid-
January 2008 incited retaliatory attacks. It partly read:
We say no more innocent kikuyu blood will be shed. We will slaughter them right here in
the capital city. For justice, compile a list of all Luos and Kaleos [slang for kalenjins] you
know at work, your estate, anywhere in Nairobi, plus where and how their children go to
school. We will give you a number to text this info.62
It is believed that the hate speech so disseminated partly contributed and shaped
the pattern of the violence in various parts of Kenya whereby the incited ethnic
groups targeted each other.
57 Human Rights Watch 2008a, p. 36.

58 Ibid., p. 37; IRIN News, 22 January 2008.
59 IRIN News, 22 January 2008 (noting that similar hate speeches from vernacular radio stations
dominated also during the 2005 constitutional referendum as a result of which KASS FM was
temporarily suspended on allegations that it was inciting violence). Cf. Republic of Kenya 2008a,
p. 41.
60 This refers to the closely intertwined Kikuyu, Embu and Meru people who inhabit Kenya’s
Central Province, who are known for their Gikuyu, Embu and Meru Association (GEMA), an
influential ethnic association in politics, and allegedly very close to Kikuyu-backed presidents,
Jomo Kenyatta and Mwai Kibaki. See BBC News, 14 April 2006. This is reportedly compara-
ble to the KAMATUSA (Kalenjin, Maasai, Turkana and Samburu) association that backed Moi’s
rule. See Republic of Kenya 2008a, pp. 25–26.
61 See IRIN News, 22 January 2008.
62 Ibid.
3.3 Mediation Process
In order to stop the humanitarian crisis in Kenya, the African Union (AU) brokered
a mediation process63 through the Panel of African Eminent Personalities, under
the chairmanship of the former UN Secretary General Kofi Anan.64 On 29 January
2008, the Panel managed to engage the PNU and ODM in this process which was
carried out within a framework called the Kenya National Dialogue and
Reconciliation (KNDR). This initiative entailed, inter alia, a series of negotiations
and agreements aimed at, first and foremost, implementing an immediate “cease-
fire” before setting a long-term programme to secure lasting peace, stability, justice
and reconciliation.65 To this effect, on 1 February 2008, the negotiating parties
arrived at the annotated agenda items and the timetable for implementation,66 and
subsequently, issued public Statements on specific agreed measures to be taken on
each agenda.67 As part of the Dialogue, three possibilities, namely a court petition
to challenge the results, a ballot re-count and a rerun, were discussed, but were all
dismissed as being unsuited in the circumstances to resolve the disputed presiden-
tial results.68 Since the bone of contention was known to be the fight for political
power, the mediators suggested a political compromise as an immediate solution to
achieve “ceasefire”. As part of this compromise, the PNU and ODM agreed to let
bygones be bygones—to leave the presidency to Mwai Kibaki, regardless of the
controversy surrounding his victory, and work together in a coalition government.69
The agreement on the formation of a coalition government was signed by Raila
Odinga and Mwai Kibaki on behalf of their parties on 28 February 2008.70 The agree-
ment entailed two things: First, they agreed on the amendment of the existing Kenyan
63 See further Lindenmayer and Kaye 2009.

64 Other members were Benjamin Mkapa, former President of the United Republic of Tanzania
and Graça Machel, former First Lady of Mozambique. See Kofi Anan Foundation 2009, p. 1.
65 Each party appointed a negotiating team of five members. See KNDR Negotiating Team at
http://www.dialoguekenya.org/index.php/negotiating-team.html. Accessed September 2014.

66 See KNDR, Annotated Agenda and Timetable. http://www.dialoguekenya.org/
Agreements/1%20February%202008%20-Annotated%20Agenda%20for%20the%20Kenya%20
Dialogue%20and%20Reconciliation.pdf. Accessed September 2014. Also see Kofi Anan
Foundation 2009, pp. 2 and 3.
67 See, e.g. KNDR Statements on: agreed security measures at http://www.dialoguekenya.org/
Agreements/Agreed%20Statement%20on%20Security%20Measures.pdf; how to address human-

itarian crisis http://www.dialoguekenya.org/Agreements/4%20February%202008-Agreed%20
Statement%20on%20Measures%20to%20Address%20Humanitarian%20Crisis.pdf; and how
to resolve the political crisis http://www.dialoguekenya.org/Agreements/14%20February%20
2008-Agreed%20Statement%20on%20How%20to%20Resolve%20Political%20Crisis.pdf. All
links accessed September 2014.
68 See agreed statement on how to resolve the political crisis at http://www.dialoguekenya.org/
Agreements/14%20February%202008-Agreed%20Statement%20on%20How%20to%20
Resolve%20Political%20Crisis.pdf. Accessed September 2014.
69 Ibid.
70 Kenya National Dialogue and Reconciliation 2008a.
3.3 Mediation Process 57
Constitution to create the new posts of Prime Minister and two Deputies.71 Second,
they also agreed that the power-sharing deal was only a temporary arrangement72
whose aim was to create a suitable environment for the implementation of the other
agreed mechanisms aimed at achieving lasting justice, healing and reconciliation.73
On the basis of this understanding, the coalition government was formed by amend-
ing the Constitution through the National Accord and Reconciliation Act of 2008.74
Raila Odinga became its Prime Minister while Mwai Kibaki remained President.
3.4 Inquiries into the Violence and Road Map for Criminal

Accountability
3.4.1 Commission of Enquiry into the Post-Election Violence
As part of the Kenya National Dialogue and Reconciliation negotiations, on 4

March 2008, the leaders of the coalition government agreed on the formation of an
independent Commission of Inquiry into the Post-election Violence.75 The com-
mission was appointed accordingly,76 and on 23 May 2008, three commissioners
were appointed to work under the chairmanship of Kenyan Court of Appeal Judge,
Philip Waki.77 The commission (hereafter “Waki Commission”) was mandated to
investigate the 2007–2008 post-election violence and, as part of its broad mandate,
to recommend measures aimed at “bringing to justice the individuals who commit-
ted criminal acts during the violence”.78 Being a quasi-judicial body, the commis-
71 By this agreement, the leader of the party with majority in Parliament (ODM) would become
Prime Minister, while an equal number of other cabinet ministers would be nominated from both
sides of the coalition government through consultation. See Ibid., p. 1.
72 It was agreed that the coalition government would be dissolved under the following three
circumstances: When the Tenth Parliament (2007–2012 phase) was dissolved; or if the parties
agreed in writing to dissolve the coalition; or if one partner in the government withdrew from the
coalition. See Ibid., p. 2.
73 Ibid., Preamble.
74 Act No. 4 of 2008: commencement date: 20 March 2008.
75 Kenya National Dialogue and Reconciliation 2008b.
76 Commissions of enquiry in Kenya are regulated under the Commissions of Inquiry Act, Cap.
102 (R.E. 2009).

77 Apart from Justice Waki, the two other commissioners were Gavin Alistair MCFadyen, a for-
mer Police Assistant Commissioner in New Zealand and Pascal K. Kambale, a lawyer from the
Democratic Republic of the Congo. George Mong’are Kegoroas, an advocate of the High Court
of Kenya and Kenyan Section Director of the International Commission of Jurists, was appointed
as Secretary to the Commission, while David Shikomera Majanja, advocate of the High Court of
Kenya, was appointed as Counsel to assist the Commission. See Kenya GN No. 4473, Vol. CX-
No. 4, 23 May 2008.
78 See Kenya GN No. 4474, Vol. CX-No. 41, 23 May 2008.
sion was also empowered to summon any person to testify on oath or to bring
along any document, and to hold public or private hearings.79 The commission
took an oath of office to commence its work officially on 3 June 2008, compiled
and published its final report (“Waki Report”) on 15 October 2008.
3.4.2 Other Inquiries
There are other inquiries into the post-election violence which were conducted
independently of the inquiry by the Waki Commission. Such inquiries mattered to
the Waki Commission because, according to its terms of reference, the Waki
Commission could (as it actually did), rely, inter alia, on the findings of “other
inquiries” to corroborate its own findings.80
One such inquiry was conducted by the Kenya National Commission on Human
Rights, an autonomous statutory body81 which acts as a watchdog over the govern-
ment in furtherance of the protection and promotion of human rights in Kenya.82
One of the statutory mandates of the Kenya National Commission on Human
Rights is “to investigate, on its own initiative or upon a complaint made by any per-
son or group of persons, the violation of any human rights”.83 The inquiry into the
post-election violence was conducted pursuant to this mandate, and was conducted
simultaneously with that of the Waki Commission. A detailed final report was
published on 15 August 2008, 2 months prior to that of the Waki Commission.84
Two other important inquiries into the violence were conducted under the aus-
pices of the United Nations (UN). One such inquiry was that of the United Nations
Office of the High Commissioner for Human Rights (UNHCHR), which looked
into the violations of human rights in Kenya committed during the post-election
violence. The inquiry was conducted during the currency of the violence, from 6
to 28 February 2008, and a final report was published accordingly.85 Another
UN-mandated inquiry was conducted by the UN’s fact-finding mission between 16
and 25 February 2009, 1 year after the violence. It was conducted by the UN’s
Special Rapporteur on Extrajudicial Summary and Arbitrary Executions, Philip
Alston. The scope of this inquiry covered, but extended beyond, the post-election
violence. It also covered the killings by the police and the violence in the Mount
Elgon District. The report of this inquiry was published on 26 May 2009.86
79 Ibid.
80 Ibid.
81 See Kenya National Commission on Human Rights Act, No. 9 of 2002.
82 More information about the Kenya National Commission on Human Rights can be found on
its website http://www.knchr.org/. Accessed September 2014.
83 Kenya National Commission on Human Rights Act, s. 16(1)(a).
84 See Kenya National Commission on Human Rights 2008.
85 See UN Office of the High Commissioner for Human Rights 2008.
86 See UN General Assembly 2009.
3.4 Inquiries into the Violence and Road Map for Criminal Accountability 59
Lastly, Human Rights Watch (HRW) conducted an inquiry into the violence
through two missions between January and February 2008, in which 200 people,
including the victims, witnesses, perpetrators, the police, politicians and other stake-
holders, participated. A consolidated report was published on 16 March 2008.87
3.4.3 Findings of the Inquiries: Were Crimes Under

International Law Committed?
The inquiries never hesitated to conclude outrightly that crimes under the domestic
laws of Kenya had obviously been committed. What was not so obvious, however,
was whether crimes under international law had also been committed. The following
subsections present the considerations and findings of these inquiries with respect to
the three core crimes of genocide, crimes against humanity and war crimes.
3.4.3.1 Genocide
When the post-election violence ended, some local and international commenta-
tors confusingly made reference to “genocide” as though it had just occurred in
Kenya.88 The Waki Commission, however, did not dwell on this subject at all. In
fact, even the word “genocide” does not appear anywhere in the Waki Report. On
its part, the Kenya National Commission on Human Rights made a specific inquiry
into this matter and reached an unequivocal and non-contradictory conclusion that
genocide did not occur.89 However, both the Waki Commission and the Kenya
National Commission on Human Rights made a finding that attempted “ethnic
cleansing” took place in Kenya, for example, in Rift Valley.90
The literature correctly suggests that the current social relations among differ-
ent communities in Kenya make the risk of genocide against an ethnic group very
high.91 This reality notwithstanding, those who made reference to “genocide” in
the context of the post-election violence in Kenya confused the two related but dif-
ferent notions of “genocide” and “ethnic cleansing”. The difference between these
two notions lies, inter alia, in their nature and status under international law. While
genocide as such is a crime under international law, ethnic cleansing is not. In fact,
the latter is not even a legal concept yet, even though it is becoming increasingly
common. In terms of definition, “ethnic cleansing” refers to acts or omissions
87 See Human Rights Watch 2008a.

88 See, e.g. Daily Nation, 1 December 2008; The Telegraph, 3 January 2008.
90 Kenya National Commission on Human Rights 2008, para 553; Republic of Kenya 2008a, pp.
91–95.
91 See, e.g. Sentinel Project for Genocide Prevention 2011; Wamwere 2003.
whose aim is to render an area “ethnically homogenous by using force or intimida-

tion to remove from a given area persons of another ethnic or religious group”.
More specifically, ethnic cleansing involves:
A purposeful policy designed by one ethnic group to remove by violent and terror-inspir-
ing means the civilian population of another ethnic group or religious group from certain
geographical areas. To a large extent, it is carried out in the name of misguided national-
ism, historic grievances and a powerful driving sense of revenge.92
Going by the definitions above, and in view of the patterns of events during the
post-election violence, one can agree to the contention that ethnic cleansing hap-
pened or was at least attempted in some parts of Kenya, especially in the form of
attacks and forceful removal of the non-Kalenjins from Rift Valley. Apparently, the
purpose of these attacks was twofold: (i) to create a homogenous voting bloc in
support of the candidates from the respective ethnic groups; and (ii) to force the
members of the targeted ethnic groups (considered as land “invaders”) to leave
Rift Valley, so that the Kalenjins could exclusively occupy their ancestral land. But
as the Kenya National Commission on Human Rights stressed, there is no indica-
tion whatsoever that the attacks were done with a genocidal intent.93 That is to
say, for that conduct to have qualified as “genocide”, the attackers must have com-
mitted the criminal acts with the “the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such”.94 This intent cannot be
established with regard to Kenya.
In conclusion therefore, it can be stated that, prima facie, the attackers’ con-
duct, which amounted to attempted ethnic cleansing, could possibly qualify as
crimes against humanity. It, however, does not fulfil the legal requirements for
genocide. Therefore, as far as Kenya’s post-election violence is concerned, the
crime of genocide does not merit further consideration.
3.4.3.2 Crimes Against Humanity
Unlike genocide, crimes against humanity have received a deserved attention with
regard to Kenya’s post-election violence. Barely a week into the violence, by 3
January 2008, the then Kenya’s Attorney General, Amos Wako, had already
formed an opinion that until then the violence had been “very close to … crimes
against humanity”.95 Moreover, the findings from the aforementioned inquiries on
92 See United Nations Security Council 1994, p. 33 (defining the concept in the context of the
conflict in the former Yugoslavia). Also see Hayde, 1996, p. 733; Ratner et al. 2009, p. 30 (dis-
cussing this definition).
94 Cf. Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July 1998 (here-
after “ICC, Statute”), Article 6; Convention on the Prevention and Punishment of the Crime of
Genocide, UNGA Res. 260 (III) A, 9 December 1948, Article II.
whether crimes against humanity happened in Kenya are overwhelmingly in the

affirmative, but are not necessarily very straightforward.
Having scrutinized the legal requirements for crimes against humanity,
the Kenya National Commission on Human Rights made two findings as regards
the crime. On the one hand, it concluded that the criminal acts committed
during the post-election violence might not qualify as crimes against humanity
under the ICC Statute, because according to the Statute, such acts must have been
committed as part of “state or organizational policy”.96 The commission was u nable
to conclude affirmatively whether the acts committed during the violence would
meet this definitional threshold requirement.97 On the other hand, the commission
concluded affirmatively that the acts qualified as crimes against humanity under
customary international law, because under customary law, crimes against human-
ity do not necessarily require a link to a “state or o rganizational policy”98 (cf. infra
Sect. 6.4.2).
On its part, the Waki Commission took a more cautious approach. First, unlike
the Kenya National Commission on Human Rights, the Waki Commission did not
expressly make separate conclusions about crimes against humanity under the ICC
Statute and under customary international law. Generally, the Waki Commission
impliedly found that there was a strong indication that crimes against humanity
had been committed, although it refrained from positively asserting so solely on
the basis of the evidence it had gathered.99 It stated as follows:
The evidence the Commission has gathered so far is not, in our assessment, sufficient to
meet the threshold of proof required for criminal matters in this country: that it be
“beyond reasonable doubt”. It may even fall short of the proof required for international
crimes against humanity.100
Despite the finding above, the Waki Commission went on to suggest affirmatively
in one of its main recommendations that the prosecution of crimes, “particularly
crimes against humanity relating to the 2007 General Elections in Kenya”, must be
carried out.101 As it stands, this recommendation does not necessarily contradict
the finding of the commission reproduced in the paragraph quoted above. For crit-
ics could argue that if, in the first place, the commission was not even sure
whether crimes against humanity had been committed, why then did it go on to
recommend emphatically that they be prosecuted? But one has to note that the
only thing the commission suggested in the paragraph quoted above is that the evi-
dence it had gathered might not be sufficient as proof beyond reasonable doubt,
96 Kenya National Commission on Human Rights 2008, paras 638–648.

97 Ibid., para 648.
98 Ibid., paras 641 and 658.
99 The Commission was criticized for this seemingly uncertain finding. See, e.g. Musila 2009,
p. 454 and The Standard, 23 November 2008.

100 Republic of Kenya 2008a, p. 17 (emphasis original).
101 Ibid., p. 472 (emphasis added).
which is the evidentiary standard required for a conviction in a criminal trial.102

Thus, the Commission was only being cautious and taking cognizance of the fact
that a proper criminal trial would require a very high threshold of evidence. But by
recommending concrete measures for prosecution of “crimes against humanity” as
such committed during the post-election violence, the Commission sent the clear
message that on the basis of its inquiry there existed all reasonable grounds for it
to believe that such crimes had been committed.
All other literature reviewed generally finds affirmatively that the atrocities
committed in Kenya do qualify as crimes against humanity. But at this point, it
is worthy stating that whether they qualify as such under the ICC statute or
under international customary law is not very relevant: What is more relevant is
that whatever their nature, they must not go unpunished. For that reason, crimes
against humanity are further dealt with in Chap. 6.
3.4.3.3 War Crimes
There have been allegations, especially by Human Rights Watch, that war crimes
were committed in Kenya, specifically in Mount Elgon district. On that basis,
Human Rights Watch has consistently called for domestic and ICC investigations
and prosecutions of the crimes, stressing that violence that happened in Mount
Elgon district “shares many of the hallmarks of the post-election violence”.103
Human Rights Watch even published a special report entitled “war crimes in
Kenya’s Mount Elgon.”104 It is alleged that the Kenyan army and a militia called
the Sabot Land Defence Force (SLDF) committed “war crimes” during a “fight-
ing” in this area.105 Human Rights Watch alleges that:
Since the beginning of the joint army-police operation in March 2008, fighting in Mt.
Elgon appears to have risen to the level of an internal armed conflict under international
humanitarian law (the laws of war). This law is applicable in situations of armed conflict
that rise above internal disturbances and tensions such as riots or sporadic acts of vio-
lence. Relevant law includes Article 3 common to the 1949 Geneva Conventions and cus-
tomary international humanitarian law.106
As an indispensable legal element, war crimes require a nexus with an armed con-
flict of either an international or non-international character.107 The paragraph
reproduced above is an attempt by Human Rights Watch to establish that nexus.
But as the paragraph clearly shows, the alleged violence in Mount Elgon district
102 Ibid., p. 17.

103 Human Rights Watch 2011b, p. 29.
104 Human Rights Watch 2008b.
105 Human Rights Watch 2008c, 2011b, p. 39.
106 Human Rights Watch 2008b, p. 6.
107 Werle 2009, pp. 373–376.
might have acquired the character of an internal armed conflict only “in March
2008”. It is noteworthy, however, that in its broad context, the violence in Mount
Elgon occurred between 2006 and June 2008. It thus started before the 2007 elec-
tions and continued even after the official “ceasefire” of the ensuing violence. As
such, the Mount Elgon violence partly overlapped with the 2007–2008 post-elec-
tion violence, specifically between December 2007 and February 2008. In other
words, although the violence in Mount Elgon was partly subsumed in the post-
election violence, the war crimes alleged by Human Rights Watch, assuming they
occurred, were committed after 28 February 2008, which is to say that they fell
outside the defined time frame of the 2007/2008 post-election violence.
The foregoing facts explain why the Waki Commission did not make any
inquiry into or finding on war crimes. In fact, like the case is for the crime of gen-
ocide, the expression “war crimes” does not appear anywhere in the Waki Report.
Apparently, this is due to the fact that the Waki Commission did not consider the
violence in Mount Elgon as part of the “post-election violence” per se which it
was specifically mandated to investigate. On its part, the Kenya National
Commission on Human Rights stated that it decided not to inquire into war
crimes, because “no credible allegations to that effect were ever made in relation
to the post-election violence”.108
Therefore, for purposes of the defined time frame for Kenya’s post-election vio-
lence, i.e. 30 December 2007 to 28 February 2008, war crimes may be irrelevant.
However, the violence in Mount Elgon will be revisited later in this book (see infra
Sect. 6.3.3) because of its magnitude and in connection with the jurisdiction of the ICC.
Here, the focus will go beyond the time frame of the post-election violence, in view of
the broad and general temporal scope of ICC’s investigation into the Kenya situation.
3.4.4 Agreement and Recommendations Pertaining

to Criminal Accountability
The need and call for the prosecution of those who committed crimes during the
post-election violence in Kenya permeates the literature. It emerges as the num-
ber one preferred accountability mechanism in comparison with other options such
as a truth commission, reparations and amnesties, although these accountability
mechanisms are not seen as mutually exclusive. Theoretically, prosecutions in the
Kenyan context would serve two purposes. The first purpose is deterrence—to pre-
vent similar violence in future. The second purpose is retribution—to break the
tradition of impunity, especially for crimes associated with the political elite or the
rich, who have previously been considered “too powerful” for the domestic courts
to dare hold accountable for wrong doing.

During the mediation process, it was generally agreed that the criminal
accountability issues would be determined according to the recommendations of
what came to be the Waki Commission. The Waki Commission recommended
that, first and foremost, domestic prosecutions of all the persons who took part in
the organization, planning and direct perpetration of the violence must be done
immediately after publishing its findings. To achieve this, the Commission specifi-
cally proposed an immediate creation of a Special Tribunal for Kenya (hereafter
“Special Tribunal”) that would “seek accountability against persons bearing the
greatest responsibility for crimes, particularly crimes against humanity, relating to
the 2007 General Elections in Kenya … through the investigation, prosecution and
adjudication of such crimes”.109 The Commission also proposed that the envi-
sioned Special Tribunal make use of “all investigative material and witness state-
ments and testimony collected and recorded” by the Commission for further
investigations and prosecutions.110
It was recommended that the proposed structure and organization of the envi-
sioned Special Tribunal be that of a “hybrid” nature. As such, it would entail an
international component by way of inclusion of non-Kenyans in the positions of
senior investigation and prosecution staff as well as judges.111 In principle, it was
agreed that the proposed Special Tribunal would apply the domestic laws of Kenya
to prosecute the perpetrators of the alleged crimes. In order to make sure that the
domestic legal framework was adequate for this purpose, the Waki Commission
further proposed that the process of domestication of the ICC Statute, which had
commenced before the violence but not completed, be fast-tracked so that the
envisaged International Crimes Act could be applied retrospectively by the Special
Tribunal.112
Moreover, as a prerequisite for effective investigation, prosecution and adjudi-
cation of the post-election violence cases, the Waki Commission proposed that
several other legislative enactments be made in order to facilitate the work of the
contemplated Special Tribunal. Firstly, it was recommended that potential wit-
nesses must be assured of their protection through full utilization of Kenya’s
Witness Protection Act of 2006113; secondly, that the Freedom of Information Bill
be drafted and enacted into law in order to facilitate full access to information by
state and non-state actors, especially if such information might lead to arrest,
detention and prosecution of the perpetrators114; and thirdly, that the existing
Constitution of Kenya of 1963 be amended to entrench the Special Tribunal and
give it constitutional legitimacy.115

110 Ibid., p. 475.
111 Ibid., pp. ix and 472.
112 Ibid., pp. 472 and 476.
113 Cap. 76 [R.E 2012].
115 Ibid., p. 473.
The most potent recommendation of the Waki Commission was the one pertain-
ing to the enforcement of its recommendation on criminal accountability. There
are all indications that this specific recommendation was given with the view to
ensuring that the Kenyan government would not view the report of the Waki
Commission as yet another museum piece; or that the government would not give
it yet another business-as-usual treatment. The reason for this observation is that
when giving the recommendation, the Waki Commission was fully aware, as the
Commission itself indicated, of the numerous previous similar reports and recom-
mendations by other commissions of inquiry which had been disregarded and
archived by the government without any implementation (see supra Sect. 2.5.3).
The Waki Commission was, therefore, aware that in all those cases the government
had deliberately chosen impunity in lieu of both criminal and political
accountability.116
In order to circumvent this predicament which could in turn render its work
nugatory, the Waki Commission cleverly fixed strict deadlines for the implementa-
tion of the recommendations, specifically those pertaining to criminal accountabil-
ity of the perpetrators bearing major responsibility for the alleged crimes.
Accordingly, an agreement on the formation of the Special Tribunal would be
signed by the parties to the Agreement on National Accord and Reconciliation
“within 60 days of the presentation of the Report of the Commission … to the
Panel of Eminent African Personalities or the Panel’s representative”. Then a stat-
ute for the Special Tribunal would be enacted and put to effect “within further
45 days after the signing of the agreement”. Lastly, the date of commencement
and functioning of the Special Tribunal would be determined “within 30 days”
after the statute of the Special Tribunal came to effect.117
The Commission articulated unequivocally the consequences that would flow
from non-compliance with these strict deadlines. It stated:
If either an agreement for the establishment of the Special Tribunal is not signed, or the
Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to com-
mence functioning as contemplated …, or having commenced operating its purposes are
subverted, a list containing names of and relevant information on those suspected to bear
the greatest responsibility for crimes falling within the jurisdiction of the proposed
Special Tribunal shall be forwarded to the Special Prosecutor [sic] of the International
Criminal Court. The Special Prosecutor [sic] shall be requested to analyze the seriousness
of the information received with a view to proceeding with an investigation and prosecut-
ing such suspected persons.118
President Mwai Kibaki and Prime Minister Raila Odinga signed the agreement for
the implementation of the recommendations of the Waki Commission on 16
December 2008.119 This agreement was not merely a toothless dog that would not
116 For extensive findings of the Commission on this aspect, see Ibid., pp. 443–454.
117 Ibid., p. 473.
118 Ibid.
119 Kenya National Dialogue and Reconciliation 2008c.
bite: It was a document which was binding on the Kenyan government as part of
the broad range of commitments made during the mediation process. The imple-
mentation of these recommendations was, for that matter, not an exclusive discre-
tion of the Kenyan government or politicians, but rather, to a certain extent,
externally controlled: It was partly in the hands of the AU mediation Panel, which
was not only empowered but was actually prepared to invoke the intervention of
the ICC if circumstances so dictated.
This arrangement earned the Waki Commission some praise. It was praised
mainly for the good “innovation” that sealed all the possibilities of government
opting for impunity. Bosire described it as “a coercive tactic to catalyze the domes-
tic prosecutions”.120 The Kenyan Daily Nation (newspaper) described it as “clever”
arrangement. The paper reported that, unlike the previous commissions of inquiry
which, “always appealed to suspected perpetrators of crimes and their friends to
investigate and prosecute themselves”, the Waki Commission was not a waste of
time and resources. The strength of the recommendation, according to the daily
tabloid, lay in the fact that the Commission “went over its suspects” heads and
roped in the international justice system over which the government had no con-
trol; and that in so doing, the Commission “showed astonishing ingenuity in antici-
pating and sealing every potential loophole that could serve as an escape hatch”.121
3.5 The Proposed Special Tribunal for Kenya:

An Overview
On 28 January 2009, the Kenyan coalition government drafted the Special

Tribunal for Kenya Bill in order to “provide for the establishment, powers and
functions” of the envisaged Special Tribunal.122 In its Preamble, the Bill acknowl-
edged the heinous nature of the crimes linked to the post-election violence.123
While on the one hand the Bill reiterated that “such serious crimes should not go
unpunished”, it, on the other hand, affirmed that “these transgressions [could not]
be properly addressed by [the ordinary Kenyan] judicial institutions due to proce-
dural and other hindrances”.124 Thus, the expectation was that the envisioned
Special Tribunal would be the best forum to address the crimes.
The Waki Commission had proposed that the Special Tribunal be “insulated
from objections on constitutionality, and … [to] be anchored in the Constitution of
Kenya.”125 The logical explanation for this proposal is that its implementation
120 Bosire 2009.
121 See Daily Nation, 1 September 2011.
122 Special Tribunal for Kenya Bill, Preamble para 1.
123 Ibid., Preamble para 2.
124 Ibid., Preamble para 4.
125 Republic of Kenya 2008a, p. 473, see specifically recommendation 6.
3.5 The Proposed Special Tribunal for Kenya: An Overview 67
would give constitutional legitimacy to the Special Tribunal, for if it was not
entrenched to the Constitution, the Tribunal would fall outside the constitutionally
recognized hierarchy of courts in the Kenyan court system.126 This would defi-
nitely make it prone to unconstitutionality attacks.
3.5.1 Salient Features of the Tribunal
3.5.1.1 Structure, Jurisdiction and Definition of Crimes
For reasons to be presented shortly, the proposed Special Tribunal for Kenya did
not materialize. However, had its bill been passed into law, the resulting Tribunal
would have had the following features.
It would have consisted of six organs: A Trial Chamber, an Appeals Chamber,
Prosecutor, Registry, Defence Office and Special Magistrates.127 Its composition
would have included a minority of Kenyan judges and a majority of foreign
judges128; a foreign Prosecutor and a foreign Registrar.129 It would have exercised
jurisdiction as follows: Its jurisdiction materiae temporis would have been limited to
acts committed between 30 December 2007 and 28 February 2008 and, exception-
ally, any act falling beyond this time frame, provided such an act had a nexus with
the post-election violence130; its jurisdiction ratione personae would have been over
both natural and legal persons; it would have enjoyed primacy of jurisdiction over
the ordinary national courts; and would have had exclusive jurisdiction over the
crimes connected to the post-election violence.131 The Tribunal’s jurisdiction ratione
126 The Constitution of Kenya of 1963 provided for a two-tier court system. The first tier com-
prised a hierarchy of Kadhi’s Courts (Article 66) with jurisdiction to “determine questions of
Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which
all the parties profess[ed] the Muslim religion” (Article 66(5).The second tier consisted of the
Court of Appeal (highest) the High Court (second highest) and the Subordinate Courts plus
Martial Courts (lowest, same level). See Constitution of Kenya of 1963, Articles 64, 60 and 65,
respectively. The Parliament only had powers to establish subordinate courts that were subordi-
nate to the High Court. Therefore, as the proposed Special Tribunal would fall outside this two-
tier court system, there was a need to legitimize it by anchoring it in the Constitution. A simi-
lar step had been taken in 2008 when Article 60 of the 1963 Constitution was amended by the
Constitution of Kenya (Amendment) Act No. 10 of 2008 (by adding Article 60A), thereby creat-
ing the Interim Independent Constitutional Dispute Resolution Court, whose role was to hear and
determine matters arising from the Constitutional Review process which was in pipeline then.
127 Special Tribunal for Kenya Bill, s. 3(3).
128 This would have applied to the Trial and Appeals Chambers. See Ibid., ss. 16 and 17. The
Special Magistracy would have been composed exclusively of Kenyan nationals.

129 Ibid., ss. 30(3) and 31(3), respectively.
130 Ibid., ss. 4, 5 and 6.
131 Ibid., s. 7.
materiae would have been over four categories of crimes, namely “genocide”,
“gross violations of human rights”, “crimes against humanity” and “other crimes”.
Moreover, the Special Tribunal would have comprised three divisions: Special
Magistrates, Trial Chamber and Appeals Chamber. The jurisdiction of the divisions
would have been apportioned as follows: The Special Magistrates would have been
responsible for trying the fourth category of crimes (in the list above), namely
“other crimes”. This category would have comprised all “ordinary” crimes under
the domestic laws of Kenya, provided such crimes fell within the jurisdiction
ratione temporis of the Tribunal.132 The Trial Chamber would have been responsi-
ble for trying all persons bearing greatest responsibility for the first three categories
of crimes, i.e. “genocide”, “gross violations of human rights” and “crimes against
humanity”.133 “Persons bearing the greatest responsibility” would have included
those who were knowingly responsible for “planning, instigating, inciting, funding,
ordering or providing other logistics which directly or indirectly facilitated the
commission of the crimes.” To determine whether a person fell within this cate-
gory, the Special Tribunal would have had to consider “the leadership role or level
of authority or decision-making power or influence of the person concerned and
the gravity, severity, seriousness or scale of the crime committed”.134 Apart from
its general appellate jurisdiction,135 the Appeals Chamber would also have had
jurisdiction to review its own judgements or those of the Trial Chamber.136
The definitions of some of the crimes were to be wider than those under cus-
tomary or conventional international criminal law. For example, apart from the
requirement that crimes against humanity be part of “a widespread or systematic
attack against a civilian population”, the Tribunal’s definition would have further
required the attack to have been done on national, regional, political, ethnical,
racial, cultural or religious grounds. Neither the perpetrator’s knowledge of the
attack nor a state or organizational policy would have been a requirement for the
crimes against humanity tried by the Special Tribunal. Moreover, the Tribunal
would have prosecuted “harassment” and “destruction of property” as individual
acts constituting crimes against humanity.137
132 Ibid., s. 9(1)(ii).

133 Ibid., s. 9(1)(a). As an exception, these categories of crimes would also be tried by the
Special magistrates only if committed by people who did not fall within the Tribunal’s definition
of “persons bearing greatest responsibility”. See s. 9(1)(b).
134 Ibid., s. 2.
135 Ibid., ss. 41(1) and 46(1).
136 An application for review proceedings would be made if a new fact not known at the time of
the closed proceedings was discovered and which apparently could have been a decisive factor in
reaching a different decision. See Ibid., s. 42.
137 The remaining acts would have been the same as those under Article 7 of the ICC Statute,
except the crime of apartheid which was omitted. The included acts would have been murder,
extermination, enslavement, deportation, deportation or forcible transfer of population, imprison-
ment, torture, rape and other forms of sexual violence, persecution and forced pregnancy.
Although violations of human rights are ordinarily imputed to state actors

(through the actions of state agents, e.g. police), the Special Tribunal Bill implic-
itly recognized private actors (i.e. individuals acting in their personal capacities) as
being able to commit such violations. Consequently, the category of “gross viola-
tion of human rights” tried by the Tribunal would have comprised six individual
criminal acts the commission of which would have given rise to individual crimi-
nal responsibility. But interestingly, with only the exception of “enforced disap-
pearance”, the rest of the individual acts in this category would have overlapped
with the individual acts falling under the category of “crimes against humanity”.
However, the only difference between the two categories would have been in the
contextual elements: Unlike crimes against humanity, the act falling under the
category “gross violations of human rights” would not have required proof of a
“widespread or systematic attack”.
As regards the crime of genocide, the definition proposed in the Bill was the
same as the customary definition in the 1948 Genocide Convention.
3.5.1.2 Individual Criminal Responsibility
Individual criminal responsibility would have attached to any person who

“planned, instigated, ordered, committed, or otherwise aided and abetted in the
planning, preparation or execution of the crimes.”138 Furthermore, intentional con-
tribution in “any other way” to the commission of the crimes by a group of per-
sons with a common purpose or to individual criminality would also have given
rise to individual criminal responsibility, provided that such contribution was
made under any of the following three circumstances: (a) “with the aim of further-
ing general criminal activity, or purpose of the individual or group;” or (b) “with
knowledge of the intention of the individual or group to commit the crime” or (c)
if the contributor “ought to have known the intention of such individual or
group”.139 Liability would also have arisen irrespective of the fact that the accused
person acted in his official capacity or carried out superior or official orders.140
3.5.2 Evaluation
A hybrid tribunal for Kenya as a time-and-event-specific mechanism to prosecute

crimes under international law would not have been a new phenomenon. Since
1993, about seven similar bodies have been formed as UN-mandated tribunals,
138 Ibid., s. 14(1). Cf. ICC Statute, Article 25(3)(c).

139 Special Tribunal for Kenya Bill, s. 14(2). Cf. ICC Statute, Article 25(3)(d).
140 Ibid., s. 14(3), (4) and (5).
hybrid (internationalized) courts and others which were in a way “special” but
non-internationalized.141 As Bassiouni rightly observes, the “special” nature of
such tribunals arises, inter alia, from their temporary existence and limited man-
date to exercise jurisdiction over only specific crimes committed in a specific time
frame.142 Apart from the International Criminal Tribunal for Rwanda (ICTR) and
International Criminal Tribunal for [the former] Yugoslavia (ICTY), which were
established by the UN Security Council, tribunals of a nature similar to that of the
proposed Special Tribunal for Kenya include the Special Court for Sierra
Leone,143 the Special Tribunal for Lebanon,144 the Special Panels for Serious
Crimes in East Timor,145 the Extraordinary Chambers in the Courts of
Cambodia,146 the Special Panels for War Crimes in Bosnia and Herzegovina147
and the Iraq’s Special Tribunal for Crimes against Humanity.148 Although the
mode of establishment and their legal status under international law are not neces-
sarily the same, one of their common denominators is the fact that all were formed
to prosecute crimes committed prior to their creation.
As stated earlier, the Waki Commission had proposed that the domestication of
the ICC Statute through the International Crimes Act (which was then at a bill
stage) be fast-tracked in order to create a substantive law to be applied by the pro-
posed Special Tribunal.149 However, as already shown, the Kenyan authorities
opted instead to include substantive law in the Special Tribunal Bill. This decision
appears to have been the most correct approach for the following reasons.
The threshold for crimes against humanity in the proposed law for the envi-
sioned Special Tribunal would have been potentially lower than that of the envi-
sioned International Crimes Act of 2008, which, as will be seen later (see infra
Sect. 4.3.2.2.2), applies the same standards, including the crime definitions of the
ICC Statute. Consequently, more perpetrators would have been held liable under
the Special Tribunal’s statute than the case would have been if the Tribunal was to
apply the fast-tracked International Crimes Act of 2008. One could take the defini-
tion of crimes against humanity as a clear example entailing a point of departure
between the two. Unlike Kenya’s International Crimes Act of 2008, the law of the
Special Tribunal, as stated earlier, would not have required any knowledge of the
141 See Bassiouni 2003, pp. 545–581; Romano et al. 2004; Werle 2009, pp. 26, 101–106.
142 Bassiouni 5005, p. 364.
143 For details see Cerone 2001–2002, pp. 379 et seq.; Cryer et al. 2001, pp. 435 et seq.;
Dougherty 2004, pp. 311 et seq.; Frulli 2000, pp. 857 et seq.
144 See Cockayne 2007, pp. 1–4; Jurdi 2007, pp. 1125 et seq.; Serra 2008, pp. 344 et seq.;
Wierda et al. 2007, pp. 1065 et seq.

145 See Cohen 2002; Dickinson 2003, pp. 295 et seq.; Suzzane 2003, pp. 245 et seq.
146 See De Bertodano 2006, pp. 285 et seq.; Scheffer 2008; Williams 2004, pp. 227 et seq.
147 See Bohlander 2003, pp. 59 et seq.; Garms and Pesche 2005, pp. 258 et seq.
148 See Bassiouni 2005, pp. 327 et seq.; Heller 2006–2008, pp. 261 et seq. Newton 2005,
pp. 863 et seq.; Tom 2005, pp. 899 et seq.

attack on the part of the perpetrator, nor would it have required the attack to have
been made pursuant to a state or organizational policy. Also, as stated earlier,
under the substantive law of the Special Tribunal statute, unlike the International
Crimes Act, it would have been possible to prosecute “harassment” and “destruc-
tion of property” per se as specific acts constituting crimes against humanity.150
But given the magnitude of the post-election violence, and the need to fight impu-
nity, it was paramount that a balance was stricken, at the domestic level, between
two things. While on the one hand it was mandatory to prosecute (by abiding by due
process requirements) the perpetrators of any conduct constituting core crimes under
international law, it was, on the other hand, important to ensure that in doing so jus-
tice would not be hindered by procedural technicalities or sophistications entailed
in the definitional requirements of the crimes. Apparently, in order to achieve this
balance, it was pertinent that the thresholds of the crimes to be prosecuted by the
contemplated special tribunal be lower, or that the scope of some of the crime defi-
nitions be made wider than that of the International Crimes Act of 2008, which, as
stated above, adheres to the standards of the ICC Statute. In addition, the law for
the special tribunal would have applied retroactively, while the International Crimes
Act of 2008, as will be shown later (infra Sect. 4.3.2.2.4), is prospective in nature.
Therefore, the former would have potentially covered crimes against humanity, war
crimes and genocide, which were not expressly part of the Kenyan law when the vio-
lence erupted, but which were nevertheless crimes under customary international law.
At another level, the hybrid nature of the proposed special tribunal would have had
two advantages over the use of Kenyan ordinary courts. First, it would have allowed
foreigners with expertise and experience in the area of international criminal law to
serve in the Kenya’s judicial system. Second, the fact that the tribunal was to have its
own staff and finances151 would have expectedly fostered expeditious dispensation of
justice in relation to cases specifically related to the post-election violence. Thus, with
regard to trials carried out by the tribunal, the risk of diminishing the strength of the
prosecution’s case due to, for example, deaths of key witnesses, the fading of their
memories, or loss of documentary evidence, would have been greatly mitigated. All
this would not have been easily possible under the ordinary court system in Kenya
where completion of cases, especially those involving serious criminal charges, takes
very long time due to, among other factors, the backlog of cases.152
Lastly, being a hybrid court, the special tribunal would have probably com-
manded more credibility among Kenyans, especially the victims of the post-election
150 Special Tribunal for Kenya Bill, s. 7.

151 ASpecial Tribunal Fund receiving monetary support from the government and donors would
have been created. See Ibid., ss. 58 and 59.
152 According to Nancy Baraza, Deputy Chief Justice of Kenya, by the year 2011, there were
cases where the accused persons had been in jail or remand for 15 or 20 years awaiting judge-
ment. See Daily Nation, 13 October 2011. See also the Address by Chief Justice of Kenya at
the Launch of the Judiciary Transformation Framework on 31 May 2012. http://kenyalaw.org/kl/
index.php?id=156. Accessed August 2014.
violence, as compared to the ordinary courts. Even Justice Philip Waki, who himself
was a senior member of the Kenyan Judiciary, acknowledged in his commission’s
report that prior to the post-election violence, the Kenyan Judiciary had “acquired
the notoriety of losing the confidence and trust of those it must serve because of the
perception that it [was] not independent as an institution even if some individual
members were”.153 Also, as stated above, it was because of the same perception or
reason that the ODM declined to challenge the 2007 presidential results in court and
resorted to its “mass action” strategy.154
3.5.3 Failed Attempts to Establish Special Tribunal
At the Bill stage, the proposed Special Tribunal was already described as “the best
option” which was more preferable than even “to a transfer of jurisdiction outside
of Kenya.”155 Unfortunately, the Bill was not passed into law. The following part
reveals why this was the case, and analyses its implications.
As proposed, the Kenyan government drafted the Constitution of Kenya
(Amendment) Bill of 2009, which proposed insertion of Article 3A to the
Constitution of Kenya of 1963 to empower the Parliament to establish the Special
Tribunal. On 29 January 2009, two bills, one for the amendment of the
Constitution and the other for the establishment of the Tribunal, were together
introduced in Parliament. However, the two bills were both rejected by Parliament
on 11 February 2009. Two new bills for the Tribunal prepared by the government
did not reach Parliament, because they were rejected at cabinet level on 14 July
2009 and 30 July 2009, respectively. It has been said that even the first set of bills
would not have reached Parliament had President Kibaki and Prime Minister
Odinga not “directed” the cabinet members belonging to their respective parties to
vote for it at the cabinet level.156
Two groups of MPs were against the proposed Special Tribunal and favoured
the “The Hague option” for two completely different motives. The first and
smaller group comprised the so-called “reform-minded parliamentarians” whose
motive was also shared by the Kenyan civil society and public in general. This
group genuinely believed that justice could only be rendered through an external
process, namely the ICC, because national judicial processes could be easily
manipulated by those with “vested interests”.157 The second and bigger group of
153 See Republic of Kenya 2008a, pp. 460–601 (emphasis added). The lack of independence
of the Kenyan judiciary was also acknowledged by Justice Jackton Ojwang of the Kenyan High
Court. See Ojwang 2008–2010.
155 Wainaina and Chepng’etich 2009.
156 The Star, 12 March 2011 (pointing out that the two leaders wrote a letter to each of the
Ministers and Assistant Ministers “directing” them to vote in favour of the bill).
157 International Crisis Group 2012, p. 6.
MPs which was against the idea of a special tribunal was that of MPs who decided
to play the political card. This group thought that a domestic tribunal would be too
close in terms of time and geography. They conceived the ICC as a “remote threat”
at the time, for they thought it would take protracted time for its processes to start,
thereby giving them ample time to avoid accountability and to contest for political
seats again in the 2013 elections.158
In rejecting both the Prime Minister’s and Justice Minister’s earnest calls for
the Parliament to pass the Special Tribunal bill, Mr. Isaac Ruto (MP), supported by
the other MPs in the second, bigger group, is on official record as having said to
the Prime Minister: “Do not be vague, say Hague”.159 This statement indicated
that those in this group were clear about their preference, though not genuinely so,
for the “The Hague option”. What is particularly interesting is that several cabinet
members, including the former Education Minister, William Ruto, and Uhuru
Kenyatta, the Deputy Prime Minister who doubled as Finance Minister, were
among MPs who championed the “The Hague” option.160 William Ruto, for
example, is on record having expressly stated that “Kofi Annan should hand over
the envelope that contains names of suspects to the International Criminal Court at
The Hague so that proper investigations can start”.161 Apparently, the duo lobbied
for The Hague option in ignorance of the fact that they themselves would be
arraigned before the ICC shortly thereafter to be charged with crimes against
humanity. To say the least, this ploy later proved to have been a serious miscalcu-
lation on their part, and their efforts to have it reversed when it backfired were
futile.162
Subsequent to the abortive attempts by the government to establish the Special
Tribunal, on 24 August 2009, a Member of Parliament, Mr. Gitobu Imanyara, pri-
vately drafted and introduced a new bill (“Imanyara bill”) to Parliament.163 This
was yet another genuine attempt to resuscitate the idea of establishing a special tri-
bunal. Like the government bills, the Imanyara bill was hamstrung by political
considerations. The bill was not passed because the MPs boycotted it three times,
resulting in a consistent lack of a quorum in Parliament.164 The idea of the pro-
posed Special Tribunal was thus blocked at this crucial moment.
158 Cf. Asaala 2012, p. 131; International Crisis Group 2012, pp. 6 and 7.
159 Parliament of Kenya 2010a, p. 36.
160 International Crisis Group 2012, p. 6; The Star, 12 March 2011.
161 See Daily Nation, 21 February 2009.
162 International Crisis Group 2012, p. 7. When the two were named by the ICC Prosecutor as
suspects, they reversed their stand about The Hague option. See Daily Nation, 26 March 2011.
163 Constitution of Kenya (Amendment) Bill of 2009. For critical comments about the Imanyara
bill, see Bosire 2009 (identifying critical flaws in the bill, including on the proposed jurisdic-
tional relationship between the tribunal and the ICC, and which, if approved, would have made
the resulting law of the tribunal inconsistent with the ICC Statute).
164 See the Parliament of Kenya 2010b, Doc. Hansard 16.12.110P, p. 22–25. See also The
Standard, 2 December 2009; The Star, 12 March 2011.

However, the possibility of creating a special tribunal did not necessarily die a
permanent death. It remained a feasible option to resuscitate the idea, provided
there was a political will. Subsequent to the failed attempt to create the proposed
Special Tribunal for Kenya, the Kenyan government made several promises that it
would create a “Special Division” in the High Court to prosecute the perpetrators
of the post-election violence.165 Admittedly, such a “Special Division” could, if
genuinely utilized, serve the same purpose that would have been served by a spe-
cial tribunal. In early 2013, Kenya’s Chief Justice announced the creation of an
“International Crimes Division” in the High Court of Kenya. But as it will be
shown in the next chapter (see infra Sect. 4.3.1.5), this specific Division was not
created specifically to address criminal accountability with respect to the post-
election violence. In fact, there are all indications that it will never be used for that
purpose.
3.6 Consequences of Failure to Create the Proposed

Special Tribunal
According to the strict deadlines which had been agreed upon (supra Sect. 3.4.4),
the Special Tribunal was supposed to have been formed by 1 February 2009.
But when the initial efforts to create it failed, the Panel of African Eminent
Personalities gave the Kenyan government an extension until the end of August
2009, to provide a second chance for Parliament to be re-engaged. Seeing that
the August deadline, too, would not be met, the Kenyan government sought yet
another extension. This time, however, a conditional extension was granted by the
ICC Prosecutor, who was already in communication with the AU mediators.
In their meeting on 3 July 2009, the then ICC Prosecutor, Louis Moreno-
Ocampo, and the leaders of the Kenyan coalition government agreed on the exten-
sion on the condition that Kenya would submit progress reports, the first one by
the end of September 2009, as to the status of domestic investigations leading to
the initiating of domestic proceedings, be it through a special tribunal or any other
avenue, within a year.166 Seeing that a new arrangement had been put in place
between the Kenyan government and the ICC Prosecutor, on 9 July 2009, the AU
mediation Panel, decided, as originally planned, to submit to the Office of the ICC
Prosecutor a sealed envelope which contained until then undisclosed names of the
alleged leading perpetrators of crimes against humanity, together with supporting
materials which had been handed over to the Panel by the Waki Commission.167
165 See BBC News, 30 July 2009.

166 See Office of the Prosecutor 2009.
167 See ICC Office of the Prosecutor, Weekly Briefing, 12–18 January 2010, Issue 20, pp. 4 and
5. See also Press Release ICC-OTP-20090709-PR436, 9 July 2009; BBC News, 9 July 2009; The
Guardian, 9 July 2009; VOA News, 9 July 2009.
3.6 Consequences of Failure to Create the Proposed Special Tribunal 75
The matter was now in the hands of the ICC Prosecutor who would assess the
materials and act on the information got out of it depending on how the implemen-
tation of his special arrangement with the Kenyan government turned out.168
The first progress report by the Kenyan government, which was submitted in
September 2009, was enough to prove to the Prosecutor that Kenya would not
prosecute any time soon.169 The Prosecutor, therefore, met with President Kibaki
and Prime Minister Odinga, and officially informed them of his opinion that
crimes against humanity had been committed during the post-election violence.
The Prosecutor made it clear to the two Kenyan leaders that since their govern-
ment had not investigated or prosecuted as agreed domestically, and that since it
had failed to do so even after the extension of time had been granted, he was now
determined to officially trigger the ICC’s jurisdiction. Interestingly, the two lead-
ers expressed their support for the triggering of the ICC jurisdiction and commit-
ted themselves to full cooperation.170
Consequently, on 15 December 2010 the ICC Prosecutor took the first step by nam-
ing six high-profile individuals, commonly referred by the Kenyan media as “the
Ocampo six”, whom he would charge before the ICC.171 This marked the commence-
ment of the ICC process in respect of Kenya, which is dealt with extensively in Chap. 6.
3.7 Where to Prosecute the Big Fish? General Domestic

Perceptions
Commendably, most Kenyans, including the so-called ordinary wananchi (citi-

zens), remained well informed about each stage of the ongoing processes regard-
ing efforts to address criminal accountability for the post-election violence, thanks
to, among others, civil society organizations, the media and the Kenya National
Commission on Human Rights. It is against this background that when the
Prosecutor announced the invocation of the ICC process, a heated debate emerged
as to the pros and cons of seeking accountability through the domestic courts or
through an externally controlled court, the ICC.
The debate entailed perceptions about the most appropriate forum to prosecute
the “big fish”, namely those who allegedly bear greatest responsibility for the
violence, especially the politicians. The perception in this regard was apparently
influenced mainly by three factors: the lack of trust and confidence in the domestic
168 See “Note on Handover of post-election violence Materials to the Prosecutor of the ICC”
http://www.dialoguekenya.org/pressmedia/29-Jul-2009%20-%20Statement%20by%20the%20
Legal%20Advisor%20to%20the%20Panel%20of%20Eminent%20African%20Personalities.pdf.
170 ICC Office of the Prosecutor, Weekly Briefing, 12–18 January 2010, Issue No. 20, p. 4.
171 BBC News, 15 December 2010. See more details in infra Sect. 6.1.
judicial and criminal justice system; the high expectations as regards the impact of
the ICC on the culture of impunity in Kenya; and the ethnicization and politiciza-
tion of justice, especially due to the composition of the “Ocampo six” list.
For example, Kenya’s Catholic Church made it clear that it favoured the ICC
route to justice only because “Kenyans had little faith in the local Judiciary”.172
Similarly, a renowned Kenyan expert in international criminal law and transitional
justice issues, who was then the Director of the Nairobi-based African Centre for
International Legal and Policy Research, Dr. Godfrey Musila, opined that it was
not viable to try the perpetrators before a judiciary with a “tainted history”. In
Musila’s view, the mere idea of proposing the creation of a hybrid special tribunal
with exclusive jurisdiction even over the lowest perpetrators “was intended to
bypass [the Kenyan] judiciary [which was] perceived by the general public [to be]
corrupt and inept”, and also to overcome the “huge rule of law deficit” in Kenya.173
The Kenyan judiciary was accused of past “depressing history of incompe-
tence, corruption and subservience”, as well as lack of independence on the part of
the judges.174 Related to this was also the concern about the incompetence on the
part of the national authority responsible for criminal prosecutions.175 Of specific
concern in this regard was the alleged previous abuse of broad prosecutorial dis-
cretion given to the Attorney General as regards powers to enter nolle prosequi,
i.e. the discretion to choose who and when to prosecute, and also to withdraw
criminal cases at any stage of the proceedings without giving reasons.176
Independent surveys conducted immediately before and after the commence-
ment of the ICC process clearly indicated that, generally, the overwhelming major-
ity of the general public perceived the ICC as the most trustworthy, independent
and reliable forum which could punish the perpetrators, especially the rich and
powerful politicians.177 Through a continuous monitoring, South Consulting, a
research firm working for the African Panel of Eminent Personalities, issued peri-
odic reports tracking the progress with regard to the implementation of the agree-
ments reached during the mediation process, including the implementation of the
recommendations pertaining to criminal accountability.
172 See Daily Nation, 19 July 2009.

173 Musila 2009, p. 456.
174 Ibid. Also see Hansen 2011a. For a detailed discussion on the independence of judges and
lawyers and allegations of and investigations of corruption against judges in Kenya see Mbote
and Akech 2011, pp. 99–115.
175 Further on these challenges see infra Sect. 4.3.1.5.
176 Musila 2009, p. 455. For greater detail on nolle prosequi see infra Sect. 4.4.2.2.4.
177 Alai and Mue 2011, p. 1232. For example, the survey conducted by Infotrack Research and
Consulting in November 2009 showed that the public support was 62 % for the ICC trials and
2 % for trials under the proposed Special Tribunal. See Alai and Mue 2010. In September 2010,
a poll by Synovate indicated that despite the judicial and legal reforms planned domestically,
the public support for accountability measures was as follows: trial at the ICC (54 %), local tri-
als (22 %), granting of amnesty (22 %). See Reuters, 27 September 2010. From another poll
published by Synovate in April 2011, the results were: ICC trials (61 %) and a special tribunal
(24 %). See Africa Review, 5 April 2010.
3.7 Where to Prosecute the Big Fish? General Domestic Perceptions 77
The report published in April 2011 presented the perception of Kenyans about
the ICC. The survey found a “clear disconnect” between ordinary Kenyans and
politicians in this respect.178 It stated that while “the political elite appear[ed] to
have a common interest in opposing accountability and other measures to end
impunity … there [was] a strong public mood against impunity”.179 As a result,
most ordinary Kenyans strongly perceived the ICC as “the only concrete action to
hold powerful people accountable for [the] post-election violence”.180
The report released in January 2012 made a similar finding. Apart from break-
ing the tradition of impunity, the ICC was also strongly perceived to be the single
most dependable forum to: bring justice to victims; establish the truth about the
violence; and deter future violence, because the domestic courts could not be
trusted and had not achieved this previously.181 There was also a perception, espe-
cially strong among the victims of the post-election violence, that the Kenyan
“government [would] unlikely conduct genuine investigations and prosecute the
[ICC] suspects”, even if it designed its own domestic mechanism to do so.182 A
victim of the violence then residing in one of the internally displaced persons’
camps believed that:
The ICC is the only option left to fight impunity in Kenya because the [domestic] institu-
tions and the politicians have failed. Ocampo cannot fail. He must not fail. If he does, that
will be the end of Kenya because there will be nothing left to fear anymore.183
To put this into a clearer perspective, the December 2010 survey indicated that
the support for the ICC was at 78 % nationally,184 and fluctuated between 60 and
82 % at provincial level.185 The report released in 2012, including that of January
towards ICC’s decision on confirmation of charges against the Ocampo six (see
infra Sect. 6.1), revealed that the public support for the ICC was still above
50 %.186 In addition, many Kenyans wanted the prosecutions to go beyond the
178 See Kenya National Dialogue and Reconciliation 2011, p. 25, para 60.
179 Ibid., p. vi, para 9.
180 Ibid., p. 8, para 26.
181 Kenya National Dialogue and Reconciliation Monitoring Project 2012a, p. 52, para 133.
182 Ibid., p. 57, para 142.
183 As quoted verbatim in Kenya National Dialogue and Reconciliation Monitoring Report 2011,
p. 25, para 59. See also International Center for Transitional Justice 2011, pp. 51–54.
184 Kenya National Dialogue and Reconciliation Monitoring Project 2011, p. 9, para 27. In
March 2011 the confidence was at 72 %. See p. 12, para 34.
185 In December 2010, confidence in the ICC per province was: North Eastern (82 %), Western
and Nyanza (75 %), Eastern (74 %), Rift Valley, where three of the ICC suspects hail from
(60 %). See ibid., pp. 9–12, paras 28–33.
186 Kenya National Dialogue and Reconciliation Monitoring Project 2012a, p. 51, para 132;
Kenya National Dialogue and Reconciliation Monitoring Project 2012b, para 52–60 (indicating,
e.g. at para 56, that by May 2012, up to 58 % of Kenyans were happy about the work of the ICC
in Kenya).
“Ocampo six”. About 77 % of them said that they would like to see the middle and
lower level perpetrators also prosecuted and punished through local mechanisms.
Of this number, 48 % preferred the Special Tribunal proposed by the Waki
Commission, while only 29 % favoured the use of the ordinary domestic courts.187
It is also important to highlight the views of those who expressed anti-ICC sen-
timents, which generally embody a strong negative perception towards the “The
Hague option”. The empirical surveys mentioned above imply that this group is
relatively small. However, the group must not be underestimated, given its compo-
sition. It was composed of mainly a section of the financially powerful political
elite, who are also among the “sharks” of the Kenyan domestic politics, and who
have tried to politicize and ethnicize the fight against impunity.188 The group
moved around the country telling the people that their six “sons” were being pros-
ecuted by a “white man’s court”; and that this was a “neo-colonialist ploy … tak-
ing them back to before independence”.189 Similarly, they described the ICC as an
“imperialist imposition” dangerous to Kenya’s sovereignty—“a Western colonial
institution that is bent on re-colonizing Africa”.190
More interesting is the fact that the negative perception gained greater momen-
tum after the names of the Ocampo six were revealed. This time it became much
stronger in the regions where the Ocampo six hail from, and especially among
members of their ethnic communities, thereby echoing the strength of the negative
ethnicity in Kenya. For example, part of the ethnic groups in Rift Valley started to
be convinced that the ICC has “targeted the suspects and their respective commu-
nities.”191 The survey report of February 2013 indicated that although the general
public support for the prosecution by the ICC was at 66 % national wide, it only
remained strongest in Nairobi, Nyanza, Western, North Eastern, and Coastal prov-
inces (from where no single ICC suspect came), while it was lowest in the Central
Province and in Rift Valley, where the remaining four suspects (the number having
been reduced from “Ocampo six” to “Ocampo four”) hailed from.192 Thus,
although citizens in general showed more support for the ICC, the suspects and
some members of their respective communities gradually started to ethicise the
ICC process.
In April 2012, KAMATUSA, a controversial association that brings together
the Kalenjin, Maasai, Turkana and Samburu ethnic groups, held a meeting in
which they endorsed one of the ICC suspects, William Ruto, as their preferred
presidential candidate for the upcoming 2013 general elections. The association
claimed that “the entire Kalenjin community was on trial at the ICC by virtue of
187 Kenya National Dialogue and Reconciliation Monitoring Project 2011, pp. 19 and 20, para 42.
188 Ibid., p. v, para 6.
189 See Drakard, 2011.
190 See Jalloh 2010.
Three of the suspects, namely, Kosgey, Ruto and Sang, come from this province.
192 See Kenya National Dialogue and Reconciliation Monitoring Project 2013, para 75.
3.7 Where to Prosecute the Big Fish? General Domestic Perceptions 79
Ruto being a suspect”.193 What is particularly interesting is that the perception of

this group was not necessarily that the allegations against the suspect were untrue.
Rather, their perception was that the ICC was practising “selective justice”. They
believed, inter alia, that the people in the Ocampo list were used as “sacrificial
lambs” to pay for the “sins” of “other known suspects”, ostensibly from other eth-
nic communities, whom the ICC Prosecutor had deliberately opted not to indict.194
In a similar scenario, on 23 March 2012, the Central Kenya local leaders under
the auspices of yet another controversial ethnic association, namely the Gikuyu
(for Kikuyu), Embu and Meru Association (GEMA), issued a statement calling for
the ICC to “postpone” the cases against the Kenyan suspects “to a period after the
forthcoming [2013] general elections”. Their argument was that by proceeding
with the case against the suspects, specifically Uhuru Kenyatta, whom the associa-
tion endorsed as its preferred presidential candidate, the ICC intended to “[deprive
them] of their constitutional right to elect leaders of their choice in free, fair and
all-inclusive elections”. They even resolved that “their community” (tribes) would
collect two million signatures on the basis of which to petition to the ICC to post-
pone the cases.195 However, they seem to have been ignorant of the fact that
legally speaking, this kind of “ethno activism” would not have had any effect in
terms of deferral of the cases at the ICC.196
In another development, which is legal in character, the anti-ICC “movement”
resulted in a local civil suit to which the ICC was included as a defendant. It is
highly suspected that this case was instigated and sponsored by the political group
touched or affected by the ongoing ICC process. The Constitutional Reference No.
12 of 2010 was filed in the High Court of Kenya at Mombasa in which the plain-
tiff, one Mr. Joseph Gathungu, asked the court to bar the ICC from conducting any
activities in Kenya in relation to the post-election violence. The applicant asked
the court for the following:
He asked for a declaration that “the involvement of the [ICC] … in the affairs of
Kenya in general, and in particular in the investigations and possible prosecutions
of the perpetrators of the post-2007 general-elections [violence] violate[d] … the
Constitution of Kenya”. In consequence thereof, he prayed that the ICC: (a) “be
ordered not to involve itself in the investigations of post-2007 Kenyan general elec-
tions”; and (b) be ordered not to prosecute any Kenyan “on account of any acts or
omissions resulting from the acts of violence perpetrated during and after the 2007
general elections in Kenya”. The applicant also asked for an order that perpetrators
of the post-election violence “be prosecuted in the constitutionally-established
193 See The Star 3, April 2012.

195 See Daily Nation, 24 March 2012. This move elicited a lot of criticism in Kenya. See, e.g.
Daily Nation, 25 March 2012 (reporting that Justice Minister Mutula Kilonzo dismissed it as
“the height of hypocrisy”); Daily Nation, 26 March 2012 (stating that the Immigration minis-
ter Otieno Kajwang’ dismissed it as “dragging Kenya back to the dark old days of ethnicity by
organising tribal meetings”).
196 On deferral of cases at the ICC see infra Sect. 6.6.1.
Courts in Kenya.” Lastly, he also asked for a declaration that the ICC’s “acts of
investigating and threatened prosecutions of any Kenyan in the [ICC]
contravene[d] the [Kenyan] Constitution and, as such, that such acts … [were] null
and void and of no legal consequence”, and that to allow the ICC to operate in
Kenya “amount[ed] to surrender of the sovereignty of Kenya to foreigners which is
totally untenable”.197
However, the Kenyan High Court dismissed the arguments and prayers in this
petition in their entirety. According to the High Court, the challenge to the oper-
ations of the ICC in the domestic courts of Kenya had no legal foundation, and
the matter raised by the plaintiff was not justiciable. Thus, the anti-ICC forces
received yet another blow in this respect.
3.8 Chapter Summary
This chapter has been presented both anecdotally and analytically, covering vari-
ous aspects of the post-election violence and the important events in its aftermath.
Specifically, the focus has been on what exactly happened during the violence;
the inquiry into the violence; the nature of the crimes which were committed, the
mediation process, the findings of the commissions of inquiry; the proposed crimi-
nal accountability measures; and the perception of Kenyans as regards these meas-
ures. As far as crimes under international law are concerned, only a preliminary
scrutiny and observations have been made. In this respect, it has been shown that
many indices exist pointing to the fact that crimes against humanity were com-
mitted during the violence. However, the question whether they were committed
under both customary international law and the ICC Statute has been reserved for
a subsequent discussion. It has also been shown that the proposed creation of a
special tribunal as an effective avenue at domestic level to prosecute the alleged
crimes against humanity was failed by political motivations, despite the consider-
able public support for the creation of the same, and that this failure prompted the
trigger of the ICC intervention in Kenya as per a prior agreement.
Furthermore, the chapter has also revealed that the idea of using the ICC, which
is, in principle, an externally managed justice mechanism, to prosecute those who
bear the greatest responsibility for the alleged crimes, was received with mixed
feelings in Kenya. On the one hand, the victims of the violence as well as the
majority of ordinary citizens generally preferred the ICC option to the local mech-
anisms. On the other hand, an influential section of the political elite behaved like
swinging pendulum bobs; they oscillated “between the various options, unsure
which would safeguard their own agendas: trials in The Hague or local trials; trials
before the Special Tribunal or national courts; and/or [a truth commission]”.198
197 Joseph Kimani Gathungu v. Attorney General and 5 Others (2010) eKLR.
198 Musila 2009, p. 445. See also Hansen 2011b, pp. 8 and 9.
3.8 Chapter Summary 81
Falling in this category are partly the politicians who allegedly had, in the past,
had the tendency and ability to manipulate the local judicial processes in their
favour. This constant shift of interest on the part of the political elite was a signal
that domestic accountability, especially with respect to the planners and financiers
of the violence, would be affected by the dynamics of the domestic politics.
Lastly, the chapter has pointed out that the ICC identified the original list of
only six individuals out of the many perpetrators who participated directly or indi-
rectly in the commission of the alleged crimes. This is despite the longer list com-
piled by the Kenya National Commission on Human Right and that of the Waki
Commission199 in respect of people who allegedly bear the greatest responsibility
for the violence. This indicated that, despite being generally perceived by Kenyans
as the most credible forum, the extent to which the ICC could address impunity
with regard to the post-election violence remained very limited. It was also an
indication that the scope of the ICC process would probably not go beyond the six
individuals initially investigated and officially charged.
The foregoing paragraph suggests that the prosecution of the majority of those
alleged to have masterminded or executed crimes during the post-election violence
can only be realized by the Kenyan domestic courts. This is the reality regard-
less of the fact that the attempt to create a special tribunal for that purpose failed;
or that the majority of Kenyans may want all the cases to be tried by the ICC or
any other external court. Given that domestic prosecutions are indispensable in
this regard, it is important to explore other options which can guarantee positive
results. The next chapter is devoted for this objective.
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Chapter 4
Criminal Accountability at Domestic Level
Abstract A state wishing to punish the core crimes under international law
in its domestic courts can choose to follow two approaches. The first is to pros-
ecute those crimes by relying on its ordinary domestic criminal law. The second
approach is to prosecute them by relying on the structure of international criminal
law as it is or as modified. The effectiveness of the first approach depends largely
on how broadly or narrowly the domestic criminal law is structured, whereas that
of the second approach depends, inter alia, on the practice followed in that state
as regards domestication of international law norms so as to make them enforce-
able in the domestic courts. This chapter examines the two approaches in relation
to the crimes against humanity allegedly committed in Kenya during the post-
election violence, and evaluates whether Kenya has or could have utilized any of
the approaches to effectively prosecute and punish the main perpetrators of these
crimes. This discussion will provide a model for other jurisdictions, especially in
the developing countries, that wish to address impunity for the core crimes in their
domestic courts.
Contents
4.2 Legal Position Regarding Enforceability of Core Crimes in Kenya.................................... 86
4.3 Alternative Legal Frameworks for Domestic Prosecution of Crimes
Linked to the Post-Election Violence................................................................................... 89
4.3.1 Prosecuting as Domestic “Ordinary” Crimes............................................................. 89
4.3.2 Prosecuting as Crimes Against Humanity as Such..................................................... 115
4.4 Issues Relating to Exercise of State Prosecutorial Function................................................ 129
4.4.1 Position Under the 1963 Constitution......................................................................... 129
4.4.2 Current Position.......................................................................................................... 130
4.4.3 Interim Conclusion..................................................................................................... 134
4.5 Chapter Summary................................................................................................................ 135
References................................................................................................................................... 136

86 4 Criminal Accountability at Domestic Level
This chapter identifies legal frameworks on which Kenya could rely at the domes-
tic level to prosecute the main perpetrators of the alleged crimes against humanity
committed during the post-election violence. It examines broadly whether such
legal frameworks could provide adequate alternatives to achieve the goals that
could have been achieved by the Special Tribunal for Kenya which, as shown in
the previous chapter, failed to materialize. The first option analysed is the ordi-
nary-crimes approach. This entails a critical analysis of the Kenyan substantive
criminal law (Penal Code) as it stood at the time of the violence, in order to estab-
lish whether it is adequate to punish the alleged crimes not as “crimes against
humanity” as such but as “ordinary crimes” under the Penal Code. As a second
option, the chapter analyses the legislative reforms adopted in Kenya subsequent
to the violence, in order to establish whether the criminal acts could be prosecuted
using their legal structure and labels under international law, i.e. as “crimes against
humanity” as such without violating the principle of legality. This entails an exam-
ination of two sub-questions: whether prosecution could be based on Kenya’s
International Crimes Act of 2008, or whether it could be based directly on custom-
ary international law existing at the time of commission of the crimes.1
The main argument of this chapter is that the failure to pass the law for the
proposed Special Tribunal for Kenya, or the fact that Kenya had not domesticated
the ICC Statute at the time of commission of the crimes, does not per se deprive
Kenya of sufficient legal frameworks to punish those crimes domestically, and that
although Kenya has carried out a few prosecutions in its domestic courts, it lacks a
political will to prosecute those who bear major responsibility for the crimes.
4.2 Legal Position Regarding Enforceability of Core

Crimes in Kenya
At the time of the post-election violence, the Constitution of Kenya of 1963 was
still in force.2 Under this constitutional order, Kenya followed the dualist practice3
of implementing international treaties. Accordingly, upon ratification of an interna-
tional treaty, the treaty did not automatically create rights or obligations enforcea-
ble as such in Kenya’s domestic courts, unless, as a matter of principle, the whole
treaty or its relevant provisions were explicitly transformed into rules of domestic
1 Cf. Kenyans for Peace with Truth and Justice and Kenya Human Rights Commission 2013,
pp. 16–26.
2 This Constitution was repealed on 27 August 2010.
3 See generally Bradley 1999, pp. 529 et seq.; Collier 1989, pp. 924 et seq.; Ginsburg 2006,
pp. 715–716.
4.2 Legal Position Regarding Enforceability of Core Crimes in Kenya 87
legal order (i.e. were domesticated) through a piece of legislation.4 In case of an

inconsistency, the Constitution prevailed over “any other law”, including interna-
tional treaties.5 Furthermore, the principle of legality (infra Sect. 4.3.2.2.4) was
entrenched under Article 77(4) of the Constitution as follows:
No person shall be held to be guilty of a criminal offence on account of an act or omission
that did not, at the time it took place, constitute such an offence, and no penalty shall be
imposed for a criminal offence that is severer in degree or description than the maximum
penalty that might have been imposed for that offence at the time when it was committed.
Kenya signed the ICC Statute on 11 August 1999 and ratified it on 15 March
2005.6 However, the Statute was domesticated into the Kenyan domestic legal
order 1 year after the post-election violence. The domestication process was done
via the International Crimes Act of 2008, which became operational prospectively
from 1 January 2009. However, prior to the domestication of the ICC Statute, and
more importantly, prior to the post-election violence, at least five other interna-
tional criminal law conventions had already been domesticated in Kenya. The four
1949 Geneva Conventions, which together embody substantive criminal law on
war crimes, had been domesticated since 1968.7 The Convention on Non-
Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity8 had been domesticated since 1972.9 The Genocide Convention of 1948
had not (and still has not) even been signed, let alone being domesticated.10 On
their part, crimes against humanity as such had not been domesticated, given that
4 East African Community v. Republic [1970] E.A; Okunda v. Republic [1970] EA 453; Pattni
and Another v. Republic [2001] KLR 262. Also see Ambani 2010, pp. 27–31; Ford 2008, p. 60;
Isabirye 1980, pp. 63 et seq.; Kenya Parallel Report 2008, pp. 13–14; Ojwang and Otieno-Odek
1998, pp. 29 et seq.
6 See ICC Press Release ICC-CPI-20050316-93, 16 March 2005.
7 See the Geneva Conventions Act of 1968. Note that Kenya was party to four other war crimes
treaties, but had not domesticated them. These were: Protocols I and II Additional to the Geneva
Conventions of 1977, the Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction of 1993 and the Protocol for
the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological
Methods of Warfare of 1925. See “Kenya: International Treaties Adherence” http://www.geneva-
academy.ch/RULAC/international_treaties.php?id_state=119. Accessed September 2014.
8 UN General Assembly Res. 2391, 26 Nov. 1968.
9 See “Kenya: International Treaties Adherence” http://www.geneva-academy.ch/RULAC/
international_treaties.php?id_state=119. Accessed September 2014. However, this particular

Convention does not codify substantive criminal law.
10 See Genocide Convention ratification status (as at 3 September 2014) https://treaties.un.org/pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en. Accessed September

2014.
prior to the adoption of the ICC Statute there had not been any convention or
treaty codifying such crimes.11
Therefore, under the legal framework which existed in Kenya at the time of the
post-election violence, it was only possible to prosecute “war crimes” as such, but
not “genocide” or “crimes against humanity” in Kenya’s domestic courts.
Does the foregoing mean that, legally speaking, Kenya did not at all have a pos-
sibility or mechanism of punishing the alleged crimes against humanity committed
during the violence? There is a view that Kenya, like any other State Party to the
ICC Statute, was not under any obligation to domesticate the substantive provi-
sions of the Statute in order to be able to punish the core crimes therein (crimes
against humanity in particular), since the Statute imposes such obligation
expressly only in respect of “offences against the administration of justice” under
Article 70 of the Statute, but not in respect of the core crimes.12 However, there is
yet another (second) view which suggests that domestication of the substantive
provisions of the ICC Statute, including Article 7 which codifies crimes against
humanity, was mandatory on the part of Kenya and other States Parties, even
though the Statute itself may not have expressly imposed a duty to do so.13
According to this view, the “duty to domesticate” the ICC Statute, specifically the
core crimes and general principles therein, is implied or presupposed in the com-
plementarity principle14 under which the ICC operates.15 Arguably, it would be
impossible for the principle to operate if states were given the liberty to choose
whether or not to implement or domesticate the Statute.16
Harmonizing the two views above, Werle rightly submits that although, in princi-
ple, domestication of the Statute is not mandatory, it is nevertheless desirable for the
effective carrying out of the intent and spirit of the ICC Statute by any State Party,17
namely ensuring that the “most serious crimes of concern to the international
11 Bassiouni 2003, p. 139 (noting that between 1943 and 1993 this crime was regulated by
eleven different instruments (see pp. 232–233), the earliest provisions being Articles 6(c) and
5(c) of the Nuremberg and Tokyo Charters, respectively. See generally Sadat 2011.
12 See Kleffner 2003, pp. 90–94; Nouwen 2011, pp. 214–216; Triffterer 2000, pp. 24–25; Werle
2009, p. 27. NB. In this regard, the ICC Statute departs from other conventions that expressly
impose such a duty on States Parties. See, for example, Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (Article 4(1)); The Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field of 1949 (Article 49); The Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 1949 (Article 50); and the
Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (Article V).
13 See Ambos 2008, marginal no. 51; Bellelli 2010, p. 212; Burchasrds 2006, p. 329; Cryer
2005, p. 171.
14 For details see infra Sect. 6.5.
15 Duffy and Huston 2000, pp. 31–33.
16 Cryer et al. 2007, p. 63.
17 Werle 2009, p. 27.
4.2 Legal Position Regarding Enforceability of Core Crimes in Kenya 89
community do not go unpunished”.18 It is the same spirit that seeks to enhance

international cooperation by urging states to take “measures at national level” to
ensure “effective prosecution” of crimes under international law.19
In summary, therefore, it can be stated that the decision by Kenya to domesti-
cate the ICC Statute as a whole, even though it was not under any express obliga-
tion to do so, is commendable and welcome. But as it stands now, the resulting
legislation is still not applicable to the crimes committed before it was enacted,
including those linked to the post-election violence. However, this does not neces-
sarily mean that domestication prior to the violence is the only legal framework
that could have ensured that the alleged crimes against humanity were prosecuted
and punished in the Kenyan courts. It would suffice if on the basis of any other
available legal framework it could be possible to prosecute the conduct crimina
lized in the core crimes in any manner which is largely consistent with the inten-
tion of ending impunity for such crimes. It would not matter much whether or not
the law used for such prosecutions has resulted from the domestication of the ICC
Statute, or whether the conduct is prosecuted as “crimes against humanity” as
such.20 What matters most is whether the legal framework chosen can impose ade-
quate punishment especially on the main perpetrators of the violence—those who
bear the greatest responsibility. The following sections will explore such alterna-
tive possibilities.
4.3 Alternative Legal Frameworks for Domestic

Prosecution of Crimes Linked to the Post-Election
Violence
4.3.1 Prosecuting as Domestic “Ordinary” Crimes
4.3.1.1 Understanding the Ordinary-Crime Approach
Despite their legal classification, the core crimes under international law should
not be viewed in isolation of the “ordinary” crimes found in the domestic laws.
There are many substantial areas of convergence and only a few areas of diver-
gence between the two sets of crimes. The main area of divergence is that, charac-
teristically, crimes under international law as such entail two main additional
elements which are not elements of purely domestic ordinary crimes. The first ele-
ment is that, as a general rule, the core crimes entail a systematic or large-scale
18 ICC Statute, Preamble para 4.

19 Ibid., preamble para 5.
20 Cf. Werle and Jeßberger 2002, p. 195.
use of force, mostly by a collective.21 The second element is that individual acts,
such as murder, rape, assault, etc., which are also found in the ordinary criminal
law of Kenya, form what one may refer to as “predicate offences” for the core
crimes under international law.
The predicate offences acquire an “elevated status” to become crimes under
international law only if the manner in which they are committed exhibits certain
additional contextual elements over and above the requirement for the ordinary
crimes. For example, some ordinary crimes become crimes against humanity when
committed in the context of a widespread or systematic attack on a civilian popu-
lation; they become war crimes when committed in the context of an armed con-
flict; and genocide when committed with the intent to destroy a protected group in
whole or in part.22 Legally speaking, therefore, it is mainly the absence of these
contextual (international) elements which brings about the “ordinariness” of the
acts, thereby making them “ordinary” domestic crimes. Save for these elements,
the conduct, whether criminalized as ordinary crime or as a crime under interna-
tional law, is, by and large, substantially the same, regardless of its nomenclature,
legal label or characterization.
Against the foregoing background, it can now be stated that the atrocious acts
committed during the post-election violence in Kenya were, in the first place,
obviously crimes contrary to the Kenyan domestic criminal law, particularly the
Penal Code.23 It was on this basis that the Kenyan National Commission on
Human Rights (KNCHR) concluded that the criminal liability for these acts could
sufficiently be established “under either domestic or international criminal law”.24
However, in analysing these crimes, part of the literature fails to appreciate ade-
quately this reality.25 For instance, Okuta overlooks the fact that Kenya could still
be discharging its duty to prosecute the core crimes under the ICC Statute even if
these atrocities were prosecuted and punished not qua crimes under international
law as such but qua domestic ordinary crimes. She asserts that at the time of com-
mission of the alleged crimes “the Kenyan Penal Code, which lays down offences
under Kenyan law, did not contain any provisions that defined or provided for pen-
alties for international crimes”.26 On this ground, she concludes that Kenya “did
not have any laws that would have enabled it to prosecute international crimes
21 See Decision on the Confirmation of Charges, Katanga and Chui (ICC-01/04-01/07-717),
PTC, 30 September 2008, para 501; ICTY Judgment, Tadic (IT-94-1-A), 15 July 1999, para 191.
See also Drumbl 2005, pp. 570–571; Fichtelberg 2006, p. 167; Fletcher 2002, p. 1514; Swart
2009, p. 82; Werle 2009, p. 32.
22 Werle 2009, p. 32.
23 Cap. 63 of Laws of Kenya [R.E.] 2009.
24 Kenya National Commission on Human Rights 2008, pp. 144–150, para 571. See also paras
572–623 for a detailed account of the specific ordinary crimes in the penal code that could be
charged in this respect.
25 See, e.g., Okuta 2009, pp. 1065–1066; Kenyans for Peace with Truth and Justice and Kenya
Human Rights Commission 2013, pp. 21–22.

26 Okuta 2009, p. 1065.
4.3 Alternative Legal Frameworks for Domestic Prosecution … 91
effectively, since implementing legislation for the ICC Statute had not yet been
passed into law”.27 Similarly, it has been argued that in view of mens rea require-
ments, “crimes against humanity sets itself [sic] apart from the crimes punishable
under the Kenyan law” at the time of the post-election violence, and therefore, to
prosecute them “on the basis of provisions in the Kenyan Penal Code” might “con-
travene the principle of specificity”.28 These arguments put undue emphasis on the
labels of the crimes as they appear in the ICC Statute or international customary
law. They seem to disregard or underrate another (second) argument that in fulfill-
ing state’s duty to prosecute and punish the core crimes under international law, it
is basically the prohibited conduct, and not the label of the crime, which should be
given primary emphasis.
The first and second arguments above embody different schools of thought
which Heller refers to as the “hard mirror” and “soft mirror” theories, respec-
tively.29 These theories concern the question how domestic substantive criminal
law should be adapted by national jurisdictions which are discharging their duty to
prosecute and punish the core crimes under the ICC Statute.
The hard mirror theory holds that prosecuting international crimes as ordinary
domestic crimes does not adequately satisfy the duty to prosecute the core crimes
under international law,30 but is arguably an indication that the state of commis-
sion is unwilling or unable to prosecute those crimes.31 Consequently, the propo-
nents of this theory argue that the definitions of the core crimes in the ICC Statute
must, apparently, be adapted verbatim, and also the crimes must be prosecuted in
the domestic courts as they are appear under international law.32
On the other hand, the soft mirror thesis holds that punishing the core crimes
under international law as ordinary domestic crimes cannot, by that mere fact,
amount to unwillingness or inability to prosecute the crimes, unless it becomes
clear that there is an intention to shield the perpetrators from criminal responsibil-
ity. Those who subscribe to this theory, including this author, agree that the
27 Ibid. (emphasis added).

28 See Kenyans for Peace with Truth and Justice and Kenya Human Rights Commission 2013,
pp. 21–22.
29 See Heller 2012, p. 203; Megret 2011, pp. 363 et seq.
30 On the duty to prosecute, see supra Sect. 1.2.
31 Heller 2012, p. 203. More on state’s willingness or inability to prosecute see infra Sects. 6.5.1
and 6.5.2.
32 Ibid., pp. 203–212. E.g., see Amnesty International 2000, pp. 5–6 (arguing that the definitions
of the crimes in national law must be as broad as those in the ICC Statute and customary law);
Ellis 2002–2003, pp. 224–225; Halling 2010, p. 839 (arguing that complementarity requires that
states prosecute crimes as they are spelled out in the Rome Statute; the prosecutions have to
be for “crimes against humanity”, not the murders, rapes, and so on that underlie the charge of
crimes against humanity.”); Philippe 2006, pp. 390–391 (arguing that it is an “obvious require-
ment” that “the definition of international crimes in domestic legislation should be in line with
their definition at the international level”); Sedman 2010, pp. 266 et seq.
ordinary-crime approach is, in principle, consistent with the ICC Statute, and that it
was actually contemplated by the drafters of the Statute.33
Therefore, pursuant to the soft mirror theory, Kenya’s substantive criminal law
cannot be explained as “unavailable” merely because “crimes against humanity”
as such could not be charged at the domestic level at the time of the violence.
Mere absence of a piece of legislation expressly domesticating the ICC Statute, or
non-inclusion of crimes against humanity as such (or the other core crimes) in the
Penal Code, does not necessarily point to the total absence of domestic substantive
criminal law to punish such crimes. Instead it can be stated that in the absence of
such legislation, Kenya had de facto opted for the “ordinary-crime approach” (or
“zero solution”) of punishing the core crimes under international law at the
domestic level. According to Werle, the zero solution approach entails the punish-
ment of the conduct criminalized in the international core crimes as part of domes-
tic ordinary crimes, without necessarily having to use the crime definitions,
elements or titles as used under international law; or without having to rely on
their direct citation.34 Thus, the zero solution approach focuses entirely on the
criminalized conduct rather than the title or label given to that conduct.
Consequently, under the ordinary-crime approach, prosecuting “wilful killing” as
“murder” under the Kenyan Penal Code would arguably save a similar purpose as
prosecuting it as, for instance, “genocide” or “crime against humanity” under
Articles 6 and 7 of the ICC Statute, respectively. The same reasoning applies in
respect of most of the other individual acts such as rape, extermination, torture,
persecution, etc., which are criminalized as “crimes against humanity” under the
ICC Statute or customary international law.35
It is worth stating that the ordinary-crime approach is not entirely new in
domestic courts. It was used successfully for the first time in Germany as a basis
for the domestic prosecutions of genocide committed against the European Jews
under the Nazi regime.36 Furthermore, in 2005, Professor Bassiouni suggested that
the same approach be used by the Iraq Special Tribunal, arguing that prosecuting
the conduct criminalized in the Tribunal’s statute in their titles as crimes under
international law as such would be “an outright violation of the principle of legal-
ity envisaged in the Iraqi law”.37
33 Cf. Heller 2012, pp. 203, 213–223. Also see Jurdi 2011, pp. 52–53; Schabas 2010, p. 84
(arguing that it is “excessive [for] the Court to intervene where a state has conducted a serious
prosecution for crimes against the person yet failed to label the act genocide, crimes against
humanity, or war crimes in accordance with the Statute”).
34 For a detailed discussion see Werle 2009, pp. 116–122.
35 Cf. International Center for Transitional Justice 2013, p. 4. Some States Parties to the ICC
Statute have officially chosen to use this approach as their formal policy. Japan, e.g. announced
officially that the ordinary crimes under its current Criminal Code are adequate to deal with the
crimes in the ICC Statute, arguing that the Code “can punish them as homicide, assault, unlaw-
ful capture and confinement, and so forth”. As a result, Japan does not deem it necessary to fully
domesticate the ICC Statute. See Meierhenrich and Ko 2009, pp. 245–246.
36 Werle 2009, p. 109.
37 Bassiouni 2005a, pp. 376–377.
4.3.1.2 ICC’s Jurisprudence Regarding Ordinary-Crime Approach
Hitherto the ICC’s jurisprudence indicates clearly that the ordinary-crime

approach is acceptable to the ICC as long as the aim and ultimate result of relying
on such approach is to genuinely punish those who bear greatest responsibility for
the crimes under the ICC’s jurisdiction. Regardless of the nomenclature of the
crime charged domestically, the underlying rule which has played a central role in
the ICC’s determination of admissibility of a case (see infra Sect. 6.5) is whether
the domestic investigation or prosecution of an ordinary crime covers the same
person and the same conduct which would have been prosecuted had the prosecu-
tion been instituted by the ICC itself.38 This rule relates directly to the ne bis in
idem principle (against double jeopardy) which is recognized both in the ICC
Statute and Kenyan laws. The gist of the principle is that the domestic courts in
Kenya, or the ICC for that matter, shall not try a person for a conduct for which he
or she has been prosecuted by another court.39 In a recent submission, the ICC
Prosecutor has endorsed the ordinary-crime approach expressly as follows:
There is no requirement that the crimes charged in the national proceedings have the same
“label” as the ones before this Court…. National authorities are not necessarily required
to charge the suspect under the exact same legal qualification. While the conduct itself
must necessarily be the same, meaning the underlying acts and incidents concerned, the
legal characterisation of such conduct may differ: it must be the same in substance.40
In addition, when applying for the issuance of summonses to appear in respect of

the six Kenyan suspects, the ICC Prosecutor argued that “there [had] been no trial
held before any competent national jurisdiction for the conduct that [was] the sub-
ject of the application”.41 Prior to this submission, Kenya had argued that the
criminal conduct in respect of which the summonses were being sought was being
investigated as part of ordinary crimes under its Penal Code with a view to prose-
cuting them domestically. As will be shown below (Sect. 6.5), Kenya’s argument
would have been accepted if the investigations claimed to have taken place had
38 Batros 2011; Boas et al. 2011, pp. 75–76; Nouwen 2011, p. 213 (stating that mere “domestic
qualification of a conduct as an ordinary crime instead of an international crime does not render a
case admissible before the ICC”).
39 See Constitution of Kenya of 2010, Article 50(2)(o); ICC Statute, Article 20(2) and (3).
Whereas subsection 2 of Article 20 of the Statute prohibits double jeopardy specifically in

respect of the “crime” of genocide, war crime, aggression or crime against humanity, subsection
3 prohibits double jeopardy in respect of the “conduct” proscribed in the individual acts under
Articles 6, 7 and 8 of the Statute. For more details, see Bassiouni 2005b, pp. 168–171; Carter
2010; Schabas 2007, pp. 192–193.
40 Public Redacted version of Prosecution Response to Application on behalf of the Government
of Libya, Gaddafi and Al-Senussi (ICC-01/11-01/11-167-Red), PTC, 5 June 2012, para 23.
41 See, Prosecutor’s Application Pursuant to Article 58 as to William Samoei Ruto, Henry
Kiprono Kosgey and Joshua Arap Sang, Situation in the Republic of Kenya (ICC-01/09-30-Red
2), PTC,15 December 2010, para 212 (emphasis added).
indeed encompassed the same persons charged before the ICC and for the same
conduct.42
In this regard, Heller takes not only a precise but pragmatic position to which
this author also subscribes. He maintains that even where the conduct is not sub-
stantially the same, or the ordinary crime is seemingly “minor”, another decisive
factor to judge whether the ordinary domestic criminal law is effective should be
the adequacy of the punishment imposed or likely to be imposed upon conviction.
Accordingly, the most important consideration is that the punishment imposed or
expected to be imposed can be greater, equal, or even slightly lower than that of
the international crime.43 Based on the combination of these two factors, namely
the substance of the ordinary crime charged and its gravity (determined by the
severity of the sanction the crime attracts), it is now opportune to assess the ade-
quacy of Kenya’s domestic ordinary criminal law in light of the ICC Statute and,
specifically, the conduct charged as “crimes against humanity” at the ICC.
4.3.1.3 Kenyan Penal Code Vis-a-Vis ICC Statute
4.3.1.3.1 Individual Acts and Sanctions
In the charges brought before the ICC, the Prosecutor alleged that during the post-
election violence in Kenya a total of five individual acts potentially constituting
crimes against humanity were committed, namely “murder”, “forcible transfer of
population”, “persecution”, “rape” and “other inhumane acts”.44 To establish
whether the ordinary crimes in Kenya cover the conduct charged in these five acts,
the ordinary crimes must be assessed in relation to the ICC’s Elements of
Crimes.45 As shown below, such assessment indicates that the conduct charged
before the ICC is covered substantially in the Kenyan Penal Code, and that for
42 See Judgment on the Application by the Government of Kenya Challenging the Admissibility of
the Case, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-274), AC, 30 August 2011, para 39. For a
further discussion on the same-person-same-conduct test see infra Sects. 6.5.3.2.1.3 and 6.5.3.2.2.
43 Heller 2012, pp. 223–245 (expounding the theory of “sentence-based complementarity” which,
he argues, is superior to the “traditional conduct-and-gravity theory”. At p. 231 he argues that in

order to determine the adequacy of the ordinary crime a comparison should be made “on the inter-
national side, ICC maximum and/or the average sentence imposed by international tribunals and on
the other side average sentences and/or the actual sentence imposed in the case in question”, and
that “as long as the sentence for the ordinary crime is equal to the sentence for the international
crime, the nature of the ordinary crime is irrelevant”. Also see generally Olasolo 2012, pp. 74–101
(analysing complementarity in relation to national sentencing for ordinary crimes).
44 See Prosecutor v. William Ruto, Henry Kosgey and Joshua Sang, Case No. ICC-01/09-
01/11 and Prosecutor v. Uhuru Kenyatta, Francis Muthaura and Mohammed Ali, Case No.
ICC-01/09-02/11.
45 See ICC Elements of Crimes http://www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-
AB0B-68E5F9082543/0/ElementofCrimesEnglish.pdf. Accessed October 2011. The Elements of

Crimes, adopted pursuant to Article 9 of the ICC Statute, are used by the ICC as aids to interpre-
tation of the crimes under the Statute. For details see Dörmann et al. 2003, p. 8.
some individual acts, the Kenyan Penal Code is by far more punitive than the ICC
Statute.46
Killing (homicide) is criminalized under Chapter XIX of the Kenyan Penal
Code as “murder” and “manslaughter”, and the two carry severe punishment of
death and life imprisonment, respectively.47 Murder is defined as causing death of
another person “with malice aforethought”.48 In addition, attempted murder and
conspiracy to commit murder are also criminalized as inchoate offences and pun-
ishable by life and 14 years imprisonment, respectively.49
Sexual offences, including rape, are criminalized as such and severely punisha-
ble. Before 2006, these crimes fell under the category of offences against morality
under Chapter XV of the Penal Code of Kenya. The offences under this chapter
have been re-characterized as sexual offences and are now comprehensively regu-
lated by a specific piece of legislation.50 This legislation makes “provision about
sexual offences, their definition, prevention and the protection of all persons from
harm from unlawful sexual acts, and for connected purposes”.51 It establishes,
defines and punishes a wide range of sexual offences, ranging from rape,
attempted rape, sexual assault, defilement and others.52 The punishment levels for
sexual offences are very severe, ranging mostly from 10 years to life imprison-
ment.53 The scope of this legislation in terms of the offences is wide enough to
adequately cover even the category “other sexual offences” in the ICC Statute.54
Furthermore, Chapters XXII and XXIV of the Penal Code contain other criminal-
ized acts which, in their totality, are intended to protect life and health. The crimes
provided for here cover several types of conduct which are also punishable before
the ICC. One such conduct in the ICC Statute is the vague and open-ended crime of
“other inhumane acts” which the ICC Prosecutor charged with respect to the Kenyan
cases, and whose constituent or specific acts are not clearly provided in the ICC
Statute. The ICC Prosecutor has alleged that the “other inhumane acts” committed
46 A broad range of punishments can be imposed by Kenyan courts. These include death, impris-
onment (including life imprisonment), detention, fine, forfeiture, and payment of compensation.
See Kenyan Penal Code, Chap. 6.
47 Ibid., ss. 202–205.
48 Ibid., s. 203. “Malice aforethought” is defined extensively under s. 206.
49 Ibid., ss. 220(a) and 224.
50 See Sexual Offences Act of 2006.
51 Ibid., Preamble.
52 Ibid., ss. 1–29.
53 E.g., severe sentences are imposed as follows: life imprisonment for rape (s. 3(3)), 10 years to
life sentence for attempted rape and sexual assault (ss. 4 and 5(2), respectively); 15 years to life
imprisonment for defilement of a child (s. 8); and 15 years to life imprisonment for gang rape
(s. 10).
54 The ICC Statute criminalizes the following conduct as crime against humanity of other sexual
offences: “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or
any other form of sexual violence of comparative gravity”. See ICC Statute, Article 7(1)(g).
during the post-election violence took the form of “very serious and life-changing
injuries” resulting from “injuries inflicted by, or resulting from, sharp pointed
objects, blunt objects, soft tissue injury, gunshots, arrow shorts, burns, and other
assaults” in respect of 3,561 people.55 Most of these acts could be punished under
the Kenyan Penal Code, for example, “intentionally causing grievous harm to
another person”,56 “common assault”57 and “assault occasioning actual bodily
harm”58 They could also be prosecuted as attempts and be punished adequately.
Chapter IX of the Penal Code criminalizes and punishes offences related to
unlawful assemblies, riots and other offences against public tranquillity. One
offence here which could effectively cover the post-election violence is established
under section 77(1). This provision criminalizes both as completed offences or
inchoate offences (i.e. attempts and conspiracy, including mere preparation) any
commission of any act or any utterance of words with “subversive” intention.
Subversive intention is defined to include, inter alia, “incitement to violence or
other disorder or crime”,59 “indicating, expressly or by implication, any connex-
ion, association or affiliation with or support for, any unlawful society”60 or
intended or calculated to promote feelings or enmity between different races or
communities in Kenya (hate speech).61 Moreover, administering or taking or pres-
ence in an illegal oath to commit a crime is in itself a crime punishable by up to
maximum of death penalty.62
It is notable that property crimes were widely committed during the post-elec-
tion violence. As a result, offences against property, specifically looting, theft and
destruction of property, were included as part of the indictment in the two Kenyan
cases before the ICC, and it has been argued before the ICC’s Pre-Trial Chamber
that such acts constitute the crimes against humanity of “other inhumane act”,
“deportation or forcible transfer of population” or “persecution”.63 This conduct,
too, is extensively covered under Division V of the Kenyan Penal Code as, for
example, felonies of theft, armed robbery, house breaking and arson. They also
55 See Prosecutor’s Request for Authorisation of an Investigation, Situation in the Republic of
Kenya (ICC-01/09-3), PTC, 26-November 2009, para 101.

56 Kenyan Penal Code, ss. 231(a) and 234. Both provisions impose life imprisonment upon
conviction.
57 Ibid., s. 250.
58 Ibid., s. 251.
59 Ibid., s. 77(1)(b).
60 Ibid., s. 77(1)(d).
61 Ibid., s. 77(1)(e) See also s. 96(a) and (b), punishing a person who “utters, prints or publishes
any words, or does any act or thing, indicating or implying at it is or might be desirable to do, or
omit to do, any act the doing or omission of which is calculated to bring death or physical injury
to any person or to any class, community or body of persons; or (b) to lead to the damage or
destruction of any property”.
62 Ibid., ss. 60–65.
63 See infra Sect. 6.4.1.1 on how property crimes committed during the post-election violence in
Kenya have been treated during the confirmation of charges stage at the ICC.
attract a broad range of severe punishments, the maximum of which being death
sentence for armed robbery.64
4.3.1.3.2 Modes of Criminal Liability
The question as to how criminal liability is apportioned to the perpetrator accord-

ing to his or her contribution or mode of participation in the criminal act or omis-
sion is generally regulated by Sections 20 to 22 (Chapter V) of the Kenyan Penal
Code under the caption “parties to offence”.65 From these provisions, individual
criminal responsibility arises if a person participates in the commission of a crime
in four ways which can be summarized as: (i) commission; (ii) aiding and abetting
(assistance); (iii) encouragement; and (iv) conspiracy.66
4.3.1.3.2.1 Commission
Two forms of commission are provided for in the Kenyan Penal Code. These are
direct commission (section 20(1)(a)) and joint commission (section 21). On the
one hand, direct commission (or direct perpetration) creates liability when the con-
duct of the perpetrator was the immediate cause of the actus reus of the offence in
question. It thus holds responsible “every person who actually does the act or
makes the omission which constitutes the offence” in question.67 On the other
hand, joint commission (or co-perpetration) creates criminal liability for participa-
tion in a common plan involving a plurality of persons who have agreed to jointly
commit a crime. It suffices that the crime committed was a probable consequence
of the execution of such a purpose (dolus eventualis).68
According to the High Court of Kenya: (i) the common plan must not necessarily
come into being prior to the commission of the crime: it can also develop in the
course of the commission of the crime; (ii) the perpetrator must share with other
64 E.g. Punishments are defined follows: 3–14 years imprisonment for theft (ss. 275–285);
5 years imprisonment to death sentence for robbery and related crimes (ss. 295–302); 5–15 years
imprisonment for house breaking, burglary and similar offences (ss. 303–311); and 14 years to
life sentence for arson or attempt thereof (ss. 332–333).
65 In a few cases, other pieces of legislation provide for modes of participation specific for
crimes established therein. See, for example, Geneva Conventions Act of 1968, s. 3.
66 Cf. ICC Statute, Article 25(3), ICTY Statute, Article 7(1); ICTR Statute, Article 6(1). For a
more detailed elaboration on modes of participation are under international criminal law, see
Bantekas 2010, pp. 51–78; Cassese 2013, pp. 161–179; Damgaard 2008, Werle 2009, pp. 167–
185; Werle 2007, p. 953 et seq. On joint criminal enterprise as a mode of participation before the
ICTY see Judgment, Tadic (IT-94-1-A), 15 July 1999, para 190 et seq.
67 Kenyan Penal Code, s. 20(1)(a).
68 It reads: “When two or more persons form a common intention to prosecute an unlawful pur-
pose in conjunction with one another, and in the prosecution of such purpose an offence is com-
mitted of such a nature that its commission was a probable consequence of the prosecution of
such purpose, each of them is deemed to have committed the offence”.
perpetrators of the crime a common intention to pursue a specific unlawful purpose

which leads to the commission of the offence; (iii) the common intention may also be
inferred from the actions of the accused persons; (iv) the accused must be aware of
the common plan when he or she decided to participate in the joint criminal act; and
(v) any offence committed by one of the implementers of the common plan, even
when it falls outside the plan, creates liability to all other co-perpetrators, provided it
was a natural and foreseeable consequence of realizing their common purpose.69
It is worth mentioning that the above-mentioned two forms of commission are
largely comparable to what is contained under Article 25 of the ICC Statute. A
third form of commission which is found under Article 25 i.e., commission
through another person, is not contemplated by the Kenyan Penal Code.70
4.3.1.3.2.2 Aiding and Abetting (Assistance)

Assistance is another mode of participation which can be located in the provisions
of section 20(1)(b) of the Kenya Penal Code. This provision creates liability for
“every person who aids or abets another person in committing the offence”, as
well as “every person who does or omits to do any act for the purpose of enabling
or aiding another person to commit the offence”.71
4.3.1.3.2.3 Encouragement
Encouragement to commit a crime is a third mode of criminal liability established
under section 20(1)(c) of the Kenya Penal Code. The section holds criminally
responsible “any person who counsels or procures any other person to commit the
offence”.72 The Penal Code provides expressly that encouragement can be charged
alternatively as “individual commission”, and in either way, the same conse-
quences in terms of punishment flow.73 Moreover, the Penal Code is clear that the
offence actually committed and the manner in which it is committed need not be
the same as that which was counselled. Also relevant is the fact that, like the case
of a common plan, it is enough that the facts constituting the offence actually com-
mitted are a probable consequence of carrying out of the counsel.74
4.3.1.3.2.4 Conspiracy
Besides being targeted as an independent crime in itself under the Kenyan Penal
Code, the common law conspiracy is also a mode of participation which is similar to,
69 Republic v. Kiprotich letting & 3 Others (2009) eKLR, pp. 13–15.
70 Cf. ICC Statute, Article 25(3)(a); Werle 2009, pp. 67–80.
71 Cf. ICC Statute, Article 25 (3)(c); Werle 2009, pp. 182–184.
72 Cf. ICC Statute, Article 25(3)(b); Werle 2009, pp. 180–182.
73 Kenyan Penal Code, ss. 20(1)(2).
74 Ibid., ss. 22(1) and 22(2).
but not the same as, a common plan.75 Whereas criminal liability for common plan
(joint commission) arises only when the planned or agreed crime has actually been
committed (i.e. when the plan has been carried out to fruition), the criminal liability
for conspiracy arises by mere conclusion of an agreement to commit a crime.
Therefore, regardless of whether or not the underlying (planned) crime has been
committed, the conspirator’s criminal liability remains intact under the Kenyan law.76
4.3.1.3.3 Further Evaluation
Given their organized nature, commission of crimes under international law usu-
ally involves two groups of perpetrators. The first and bigger group is that of direct
perpetrators i.e., those who perform the actual or physical acts of killing, rape, tor-
ture, etc. The second and smaller group is that of indirect perpetrators i.e., those
who rarely commit the crimes personally, but who, through planning, funding and
instigation, do facilitate or contribute substantially to the commission of the
crimes. The second group of perpetrators is considered the most responsible for
the crimes, despite usually being far away from the actual scenes of crime, and it
is this group that the ICC normally targets for prosecution.77 This, in a nutshell,
means that if the ordinary-crime approach is used to prosecute such crimes, first
and foremost, the rules establishing individual criminal responsibility must, as a
matter of principle, be able to connect or link both groups of perpetrators to the
crimes and punish them sufficiently.78 The Kenyan Penal Code is suitable for the
task as far as the post-election violence is concerned.
In the Kenyan scenario, the direct perpetrators who committed crimes against
the members of “unwanted” communities or perceived “invaders” in their local-
ity, or the police officers who through deliberate omission failed to prevent the
75 Ibid., Chap. XLI; ss. 393–395.

76 It is also immaterial whether the planned crime is possible of being committed or the con-
spirator is actually capable of committing the underlying offence. Cf. Meierhenrich 2006, pp.
344–345. NB. The crime of conspiracy is treated slightly differently in the Common Law and
Romano-Germanic legal traditions. These differences have been reflected in the jurisprudence of
the Ad hoc Tribunals, and have also impacted on the ICC Statute. For a recent in-depth study in
this regard, see Okoth 2014.
77 Accordingly, very often the degree of criminal responsibility for crimes under international law
tends to increase (rather than decrease) as the perpetrator’s physical distance from the scene of the
crime increases. See Judgment, Tadic (IT-94-1-A), 15 July 1999, paras 191–2; Werle 2009, p. 166.
78 Cf. Amnesty International 2000, pp. 5–6. In this regard, Osiel notes that on a case-by-case
basis, depending on the structure of the domestic law concerned, several challenges may arise
from the use of the ordinary-crime approach, including (i) the failure to link the indirect perpe-
trators to and hold them responsible for the misconduct of the direct perpetrators; (ii) domestic
rules putting more concentration on the actual perpetrators, thereby letting the indirect perpetra-
tors of the crimes go scot free; or (iii) although the scope of domestic rules on individual crimi-
nal responsibility could be wide enough to net in the indirect perpetrators, such law may end up
apportioning them less criminal liability (e.g. accessorial liability and consequently, a less severe
sentence) than the direct perpetrators. See Osiel 2005, pp. 793–795.
attacks on the civilian populations, can be prosecuted as direct perpetrators under

section 20(1)(a) of the Penal Code. Falling under this group also are the ordinary
followers or sympathizers of the PNU and the ODM, including the members of the
affiliated criminal gangs such as the Mungiki.
As already shown (supra Sect. 3.2.2), the post-election violence assumed a pat-
tern of coordinated attacks. As such, most of the direct perpetrators mentioned
above, although also criminally responsible for their own acts, were knowingly or
unknowingly implementing some sort of a plan, or at least acted on some encour-
agement. In order to avoid the possibility of the domestic prosecutions concentrat-
ing only on these “small fish” by relying on direct commission, domestic
prosecutors could, when charging these crimes, also rely on the modes of partici-
pation entailing indirect commission. In this regard, if the provisions of section 21
of the Penal Code (common plan) were to be applied effectively and genuinely, the
liability of the architects of the violence—the planners, buyers and distributors of
weapons and the instigators—could be established under the ordinary-crime
approach. In the case of Republic v. Letting and three others, the High Court of
Kenya already took cognisance of the uniqueness of the crimes committed during
the post-election violence and highlighted, inter alia, that the doctrine of common
plan would have been the most appropriate way of dealing with the crimes as they
apparently involved group planning.79
Secondly, as the Kenya National Commission on Human Rights has correctly
argued that encouragement and assistance would be two of the most appropriate
domestic modes of responsibility to found criminal liability, for “[a] majority of the
senior actors, especially political leaders, who might not have been directly
involved in the execution of the violence as opposed to the youths on the streets
who did the actual killing and destruction of property”.80 This argument is plausible
because, by its nature, accessory liability arises upon proof that the accused person
was connected to the crime in question but not necessarily by being physically pre-
sent at the scene of the crime. Under the current common law position, the person
who counsels, encourages or otherwise aids and abets another person to commit a
crime is considered to be arguably the “actual originator” of the crime.81 It is nota-
ble that even the old requirement that the direct perpetrator must first be found
guilty in order for the accessory to also be found guilty is no longer applicable.
Thus, it can be asserted that the practical distinction between principals and
accessories to a crime has significantly lost its relevance in the common law legal
tradition, thereby making the two parties to crime equal in terms of culpability and
79 See Republic v. Kiprotich Letting and Three Others (2009) eKLR, pp. 15–18.
80 See Kenya National Commission on Human Rights 2008, p 159, para 609.
81 See LaFave 2003, pp. 666–667.
liability for punishment.82 The Kenyan Penal Code amply supports this assertion.
It clearly provides that regardless of whether the accused person is the direct per-
petrator of the crime or otherwise contributed indirectly to its commission through
assistance or encouragement, his or her criminal responsibility is the same. In this
respect, the chapeau of section 20 of the Code provides categorically that those
who directly commit, assist or encourage the commission of a crime are “deemed
to have taken part in committing the offence and to be guilty of the offence, and
may be charged with actually committing it”. Also those who counsel or procure
others to commit a crime “may be charged either with committing the offence or
with counselling or procuring its commission”.83
The foregoing explanations suggest that if the Kenyan Penal Code was genu-
inely applied as the basis for charging the crimes associated with the post-election
violence, the architects of the violence would not escape liability easily. The most
important and challenging task on the part of domestic prosecutors would be to
establish the connection or contribution of these individuals to the crimes in terms of
the actual planning, instigation, aiding or abetting in the commission of the violence.
At another level, by prosecuting the acts as ordinary Penal Code crimes,
Kenyan prosecutors would have an additional practical advantage which they
would not have if they prosecuted the acts as crimes against humanity as such.
Such advantage relates to the onus of proof. Usually, for ordinary crimes the pros-
ecution’s task is mainly to prove the objective and subjective elements of the crime
i.e., actus reus and mens rea for the ordinary crime charged. The prosecution is
therefore relieved of the additional burden of proof relating to the contextual ele-
ments of crimes against humanity (see infra Sect. 6.4.2.2) which must be proved
alongside the individual acts should the crimes must be charged as crimes against
humanity as such.84
Furthermore, given the lack of expertise in international criminal law in
Kenya, especially on the part of the state prosecutors and investigators (see infra
Sect. 4.3.1.5), prosecuting the conduct as ordinary crimes is more likely to yield
better results. Local prosecutors are much more versed with the crimes in their
82 For example, s. 8 of the English Accessories and Abettors Act of 1861 (amended by the Criminal
Law Act 1977) provides: “Whoever shall aid, abet, counsel or procure the commission of any
indictable offence whether the same be an offence at common law or by virtue of any act passed or
to be passed, shall be liable to be tried and punished as a principal offender”. As an exception to this
rule, common law retains the distinction between a principal and an accessory in respect of cases
relating to strict and vicarious liability offences; as well as in cases where the laws requires that
the offence in question can be committed only by a member of a specific class. See LaFave 2003,
p. 669. Cf. Allen 2005, p. 199; Hamdorf 2007, p. 218; Smith and Hogan 2005, p. 165.
83 Kenyan Penal Code, s. 20(1) (emphasis added).
84 In this regard, Heller notes that the ordinary crimes approach, especially in the developing
states, gives more flexibility to domestic prosecutors to select a crime they are conversant with
and which they can successfully prosecute and secure maximum conviction easily. Therefore,
requiring them to prosecute as “international crimes” as such might make them fail to prove their
case due to the requirement to prove not only the criminal conduct charged but also the contex-
tual elements of the crime. See. Heller 2012, pp. 216–218.
Penal Code than crimes under international law or in the ICC statute for that
matter. This could be one of the explanations behind the decision that the pro-
posed Special Tribunal for Kenya would have drawn its investigators and chief
prosecutor from outside Kenya (see supra 3.5.1.1). In proposing the outsourc-
ing of the prosecutorial function, the contemplators of the special tribunal must
have considered, among other factors, the knowledge gap in the domestic institu-
tions vested with investigative and prosecutorial authority in terms of the general
understanding and mastery of the core crimes under international law and their
sophistications.
Lastly, it is admitted that charging the conduct as “ordinary crimes” may not
squarely depict the degree of condemnation or the “moral repugnancy” that
attaches to the conduct as the case would seem to be if charges were, for example,
for “crimes against humanity” per se. But for the international community, and
more importantly for the victims of the post-election violence, it is not necessarily
the label of the conduct charged that matters most, but rather the punishment of
the perpetrators for the criminal conduct they committed. In this regard, it is now
evident that the Kenyan Penal Code is even more punitive than the ICC Statute.85
4.3.1.4 To What Extent Has Kenya Utilized the Ordinary-Crimes

Approach?
Having established that the ordinary-crime approach is sufficient for Kenya, this
section proceeds to examine the extent to which Kenya has utilized the approach to
prosecute the crimes committed during the post-election violence. It is worth stating
that, 3 years after the violence, in December 2010, Kenya’s Attorney-General, who
was at that time the head of Kenya’s prosecutorial authority, stated as follows:
I must say there has been some prosecution for the post-election violence, but it was mini-
mal and did not make any impact. The people perceived to have been perpetrators were
not investigated and accordingly, were not prosecuted.86
85 The ICC cannot impose death penalty. The maximum sentence it can impose is life impris-
onment. See ICC Statute, Article 77. In the first two convictions by the ICC against Thomas
Lubanga (for war crimes) and Germain Katanga (for war crimes and crimes against humanity),
jail sentences of 14 and 12 years were imposed, respectively. See Decision on Sentence, Lubanga
(ICC-01/04-01/06-2901); TC, 10 July 2012; Decision on Sentence, Katanga (ICC-01/04-01/07-
3484), TC, 23 May 2014. Similarly, studies of the ITY and CTR sentencing jurisprudence indi-
cate that the two Tribunals are considerably less punitive than national courts of Rwanda and
Yugoslavia prosecuting the same conduct as domestic ordinary crimes. See Heller 2012, pp. 226–
228. For more details see Drumbl 2007; Harmon and Gaynor 2007, pp. 688 et seq; Meernik and
King 2003, pp. 717 et seq.
86 See Statement of Kenya’s Attorney-General Amos Wako during the opening of an work-
shop on the ICC and complementarity in Nairobi, 3–4 December 2010, p. 13. Available at
http://www.africalegalaid.com/news/proceedings-of-icc-complementarity-workshop-in-kenya.
In view of this statement, it is important to analyse what crimes have been

charged, who has been prosecuted, who has not been charged, and why.
Initially, the speed with which the security agencies and prosecutorial authority
started dealing with the crimes seemed promising, although at first they focused only
on minor offences. For example, by 1 June 2008, just 4 months after the end of the
violence, a total of 4,690 petty offences related to the post-election violence had been
prosecuted and disposed of country wide, while 7,310 cases were pending in
courts.87 The minister responsible for internal security directed the police to speed up
the investigations and prosecutions, especially of “those linked to capital and serious
offences” and give the various cases priority in accordance with gravity.88 The crucial
question then remained whether the investigative and prosecutorial authorities would
ensure that the main architects of the violence were investigated and prosecuted. If
these authorities were seriously determined to address this question, they would, as a
matter of priority, have taken into consideration the following lists of known suspects.
4.3.1.4.1 Lists of Suspects
At least four lists of suspects have been compiled at different times by different
sources, although not all the individual suspects in the lists have been expressly
identified by names. In the two cases where names have been expressly men-
tioned, the lists do overlap greatly.
The first list of suspects was compiled by the Waki Commission. It was a list of
20 names that were enclosed in an envelope and handed over to the African Panel
of Eminent Personalities and later to the ICC Prosecutor for further investigations.
The envelope not only contained the names of the alleged main perpetrators, but
also contained reasons (supporting evidence) for an investigation. However, the
identities of the persons named in the envelope were not revealed to the public.
The ICC Prosecutor stated that “the content of the envelope will remain confiden-
tial, there will be no leaks”.89 Thus, it can only be stated with certainty that the list
remains known to the members of the Waki Commission, the members of the AU
Panel of Eminent African Personalities and the Office of the ICC’s Prosecutor.
This is despite the fact that in Kenya it is contended that the list was revealed to
President Mwai Kibaki and Prime Minister Raila Odinga; and that the Prosecutor
discussed the content of the envelope, including the names therein, with the two
principal leaders of the coalition government before the ICC process began.90
Another list of suspects is associated with the police. Following the minister’s
directive to the police to speed up the investigations and prosecutions, the police
said that they had already identified a list of 103 “priority cases” against 137
87 Daily Nation, 1 June 2008.

88 Ibid.
89 ICC Press Release, ICC-OTP-20090716-PR439, 16 July 2009.
90 Daily Nation, 5 August 2012.
suspects. Kenyan newspapers reported that the cases in the “priority list” included,
for example, the murder of 35 people burnt in the Kiambaa church in Eldoret, 19
people burnt in a house in Naivasha, Catholic Priest, Michael Kamau, an administra-
tive police officer in Kericho, a district officer and Charles Keittany Korir, a former
irrigation officer in Koibatek district.91 It was also reported that the police had
drawn up a separate list of 200 “prominent people”, including politicians and busi-
nessmen, whom they “suspected to have sponsored the violence”. Some of these
individuals have been charged92 but not much information about their cases was
known at the time of writing. What remains unclear though is whether these two
lists by the police were linked, although there is a high possibility that they could be.
The third, long list of suspects was compiled by the Kenya National Human
Commission on Human Rights following its thorough and independent inquiry
into the violence. This commission is a statutory institution whose mandate is
traceable directly to the Kenyan Constitution. As such, its reports on various
human rights issues in Kenya have demonstrated that it is an independent and
credible body. For that reason, its inquiry into the violence was not done from the
perspective of mere “NGO activism”. It is on the basis of this background that
such reports, including the one containing the list of the suspects accused to have
taken part in the post-election violence, must be accorded the weight they deserve.
In order to compile its list of suspects, the Kenya National Human Commission
on Human Rights used seven objective criteria based on a “threshold of credible
and reliable information” concerning the participation of the various perpetrators
in the violence.93 The following criteria were particularly used:
• Level of information and detail describing the role the alleged person may have
played;
• Existence of corroborating or verifying information on the person (including
confessions);
• Credibility of the allegations;
• Subjecting “I heard” type of allegations to the preceding three criteria before
admission;
• Consideration of the totality of information available, including that obtained
through interviews with alleged perpetrators;
• Exclusion of outrageous, preposterous and baseless information; and
• Whether or not, on a balance of probabilities, [the commission] believed that a
name should or should not be included based on any or all of the above criteria.94
91 Daily Nation, 1 June 2008.

92 This includes, for example, ODM politician Jackson Kibor, who was charged in Nakuru with
incitement; Kapsabet mayor Michael Rono, Councillors Paul Cheruiyot and Johnston Kirua
and former councillors Ishmael Choge, Abid Keter, Richard Ruto and George Ruto, who were
charged with crimes against property; and former Moi University lecturer and businessman Silas
Simatwo, who was charged for allegedly financing the violence. See ibid.
93 Kenya National Commission on Human Rights 2008, p. 13, para 22.
94 Ibid.
On the basis of the criteria set out above, the Commission published a list of about
220 alleged perpetrators with a description of their specific role in the organization
of the violence. The following important information as regards the perpetrators
accompanied the list: (i) “adverse mentions” (i.e. mentioning of their names); (ii)
their background information; (iii) the specific allegation(s) against each of them;
and (iv) information supporting the allegation(s).95
In addition to the list, the Commission developed a “triangle of responsibility”
that entailed an attribution of responsibility to the perpetrators according to their
alleged degree or level of participation in the violence. Accordingly, the listed
alleged perpetrators were classified into three groups, namely (i) “remote perpetra-
tors”, namely those who were allegedly the “overall planners, financiers, instiga-
tors and organizers” of the violence. This group constitutes the least number
forming the apex of the triangle. Notwithstanding their remoteness from the
scenes of crime, the perpetrators in this group were classified as being the “most
responsible” for the post-election violence; (ii) “mid-level perpetrators”, namely
those who received instructions or orders from the main perpetrators and oversaw
the actual implementation of the plans in the local areas; and (iii) “low-level per-
petrators”, namely those who physically or directly committed the crimes during
the violence. This formed the biggest group of perpetrators.96
Furthermore, the Commission included a breakdown in its report which
grouped the perpetrators into five categories according to their role or influence in
the society. The composition of the categories included (i) 20 MPs or senior politi-
cians, including ministers in the government immediately prior to the 2007 general
elections and also those serving in the coalition government; (ii) at least 40 senior
public officers or state agents; (iii) five vernacular radio stations; (iv) four religious
leaders; and (v) at least 160 other people who do not fall in any of the four groups
above.97
Interestingly, five out of the six suspects in the “Ocampo six” list, namely
Uhuru Kenyatta, William Ruto, Henry Kosgey, Mohammed Ali and Joshua Sang,
were adversely mentioned in the list of perpetrators compiled by the Kenya
National Commission on Human Rights. The sixth suspect, Francis Muthaura, was
not mentioned anywhere in the report. Furthermore, the Commission made it clear
that its list of suspects should be a “basis and a good starting point for further
investigations”.98 It could not be established the extent to which the list of sus-
pected perpetrators compiled the Kenya National Commission on Human Rights is
related to those allegedly compiled by the Kenyan police (if any actually exists).
The fourth and last list of perpetrators was published by the Kenyan Truth
Commission in its final report of May 2013 (infra Chap. 5). Save for a few additions,
the Truth Commission identified 56 names from the list of perpetrators compiled by
95 See Ibid., pp. 176 et seq. (Annex 1).

96 Ibid., pp. 12–3, paras 20–21.
97 Ibid., pp. 176 et seq. (Annex 1).
98 Ibid., p. 176.
the Kenya National Human Commission on Human Rights and recommended their
further investigation or prosecution.99 The Truth Commission had a clear statutory
mandate to give binding recommendations, including on prosecutions.
Therefore, in view of all the four lists of perpetrators described above, it is clear
that the investigators and prosecutors had a foundation to build on i.e., the list of
known suspects. The following section examines the available figures and facts
regarding actual investigations and prosecutions by May 2013.
4.3.1.4.2 Figures and Facts on Domestic Investigations and Prosecutions
The figures and facts provided below show that some progress was made between
2008 and 2012 with regard to investigation and prosecution of the crimes linked to
the post-election violence, charges being for ordinary domestic crimes. The ques-
tion whether this is sufficient for the requirements imposed by the duty to pros-
ecute the core crimes (see supra Sect. 1.2) is addressed at the end of this part.
4.3.1.4.2.1 Attorney-General’s Report of 2009

In June 2008, the Kenyan Attorney-General directed the Director of Public
Prosecutions (DPP) to constitute a team to undertake national wide review of the
cases related to the post-election violence. At that time, the Attorney-General was
the Kenya’s chief prosecutorial authority, while the DPP was subordinated to the
Attorney-General’s Office. The team was constituted accordingly, commenced its
work on 21 June 2008 and submitted its report to the Attorney-General in February
2009.100 As Table 4.1 shows, the report, contained information of cases which had
already been concluded, those pending in courts and those still under investigation.
The report further indicates that, as of the report date, there were 3,627 cases
under investigation (not yet brought to court) all of which in Rift Valley. The cases
pending in courts were in respect of 33 specific penal code offences, while those
already concluded were in respect of 27 offences.
According to the report, the following number of cases (quantity shown in
brackets) had been concluded in respect of the specified penal code offences: rob-
bery with violence (two); arson (five); attempted arson (two); stealing (six); bur-
glary and stealing (two); malicious damage of property (one); creating disturbance
(one); taking part in riots (five); possession of offensive weapon (one); obstructing
police (one); shop breaking and stealing (eight); stock theft (four); being armed in
public (one); house breaking and stealing (four); breaking into building and com-
mitting a felony (five); incitement to violence (six); bar breaking and committing
felony (two); handling stolen property (four); breach of peace (one); conveying
stolen property (three); store breaking and stealing (one); stealing motor vehicle,
99 Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, Appendix 2.
100 Republic of Kenya 2009.
Table 4.1 The total number of cases concluded, those pending before courts and those in
respect of which the Attorney-General had issued directives to withdraw permanently or to be
reinstituted after further investigations as at 27 February 2009
Province Number of cases Number of cases AG’s directives about action to be taken
concluded pending before on the cases pending before courts
courts Proceed Withdraw Withdraw for
to logical and close further investi-
conclusion file gations
Cases Accused Cases Accused Cases Cases Cases
Rift valley 28 60 106 504 42 48 16
Western 19 44 23 51 16 7 –
Nyanza 23 112 21 42 11 9 1
Coast 13 51 6 79 – – –
Central – – – – – – –
Eastern – – – – – – –
Nairobi – – – – – – –
Total 83 267 156 676 69 64 17
Author’s adaptation from the statistical information presented in Republic of Kenya 2009 (AG’s
report on the post-election violence related cases), pp. 8–37
publishing false rumour, preparing to commit a felony (one); bond to keep peace
(one); threatening to kill, threatening violence, setting fire on calculated crop,
inquest, riotously interfering with vehicles (two); hotel breaking (two); and being
armed in public (one).101
As can be discerned from the report, most of the concluded or ongoing investi-
gations and prosecutions had been in respect of relatively “minor” offences, and
mostly relating to property. For example, while no single case had been concluded
with regard to the crimes of “murder” and “assault causing actual bodily harm”,
only five cases and one case were pending in court in respect of the two crimes,
respectively.102 What is completely missing in the report is any mention of or
information about concluded or pending cases in respect of sexual offences,
despite the fact that high number of rapes occurred during the post-election vio-
lence and were reported. The report itself expressly observed that until then no
subsequent follow-up had been made in respect of the high number of complaints
recorded in the internally displaced people’s camps, specifically noting that the
number of murder cases being investigated or pending in courts was comparatively
too small in view of the high number of deaths reported during the violence.103
101 See Republic of Kenya 2009, pp. 35–37.

102 See ibid., Appendix iv.
103 Ibid., p. 40.
Consequently, the report was quickly dismissed by the ICC Prosecutor as he

argued that it was not reflective of a serious willingness to fight impunity.104
4.3.1.4.2.2 Attorney-General’s Report of 2011

In March 2011, 2 years after the first report was compiled, the Kenyan government
through its Attorney-General released another document which was supposedly a
“follow-up progress report” to the 2009 report.105 In this “updated” report, the
most prominent chapter was that on gender related violence, which had been com-
pletely missing or omitted in the previous Attorney-General’s Report. The 2011
report shows that by the date on which the report was published, 399 investiga-
tions against 311 persons had been started or concluded in relation to five gender
related crimes, namely defilement, attempted defilement, rape, attempted rape and
gang rape.106 A further breakdown regarding sexual offences was as follows: (a)
45 accused persons had been convicted; (b) 41 cases had been withdrawn or
acquitted; (c) 25 cases were pending arrest; (d) 72 cases were still pending investi-
gations; (e) 49 cases against unknown accused members of the police force were
pending; (f) 105 cases had been forwarded to the Attorney-General seeking his
authorization to withdraw; and (g) 62 cases were under trial in court.107 Table 4.2
provides further statistical information on the status of cases as at March 2011,
including those relating to sexual offences.
Table 4.2 The status of cases relating to the post-election violence in Kenya per province in
respect of all crimes as at March 2011
Province Cases still under Convictions Acquittals Withdrawn Pending arrest of
investigation known suspects
Rift valley 3,325 50 40 68 16
Western 51 7 0 3 –
Nyanza 69 25 4 18 1
Coast 14 5 9 90 –
Central 8 – – 1 –
Eastern – – – – –
Nairobi 12 7 4 – –
Total 3,479 94 57 180 17
Author’s adaptation from the statistical information presented in Republic of Kenya 2011 (AG’s
updated report of post-election violence related cases), pp. 70–72
104 See Prosecutor’s Request for Authorisation of an Investigation, Situation in the Republic of
Kenya (ICC-01/09-3), PTC, 26 November 2009, paras 53–54.

105 Republic of Kenya 2011.
106 Ibid., pp. 9–23.
107 See ibid., pp. 7–8.
One observation to make at this stage is that the 2011 report does not present
comprehensive information. In the first place, the report was not an outcome of a
thorough exercise. It was compiled in a hurry (only in 10 days)108 primarily
because the Kenyan government wanted to submit it to the ICC to support its
admissibility challenge in respect of the two cases before the Court (see infra
Sect. 6.5.3.2.2). The report itself states that in that short period of time not all
anticipated cases were reviewed and updated.109 It is further acknowledged that
with the exception of the figures on the gender related violence, the rest of the
report is a duplication of the information contained in the 2009 report.110 On these
grounds, Human Rights Watch dismissed it as an unreliable report which was
“compiled hastily, with little concern for accuracy”, and which, as a result, was
“riddled with errors”.111 Among flaws which have been identified with regard to
the report include, for example, acquittals which were labelled as convictions and
the inclusion in the report of cases which were completely not related to the post-
election violence, with a view to making numbers impressive for purposes of the
above-mentioned admissibility challenge.112 Moreover, like the 2009 report, it is
not clear how the list “priority cases” alleged to have been compiled by the police
feature in the 2011 report.
4.3.1.4.2.3 Human Rights Watch Survey of 2011

An independent and comprehensive survey on the status of national investigations
and prosecutions of the cases related to the post-election violence was conducted
by Human Rights Watch between February and November 2011. The survey cov-
ered 13 court jurisdictions in five provinces which were most affected by the vio-
lence.113 Apart from interviews, the research entailed a perusal of 76 court files on
selected cases. The selection only targeted cases that could be categorized as “high
profile cases”. According to Human Rights Watch, two criteria were used in deter-
mining whether a particular case passed the high-profile-case test. The first crite-
rion was the official or societal position of the accused persons during the
post-election violence. In this regard, the investigations and prosecutions “involv-
ing politicians, police, business people, or other influential citizens” were classi-
fied as constituting high-profile cases. The second criterion of a high-profile case
was the gravity of the offences charged. Falling under this category were cases
108 See the terms of reference in ibid., p. 3.

109 ibid., p. 73.
110 ibid., p. 74.
112 Ibid., pp. 25–27 and 45. Kenya actually invoked this report in its admissibility challenge. See
infra Sect. 6.5.3.2.2.
113 These are Bungoma, Butere, Eldoret, Kakamega, Kericho, Kitale, Molo, Mombasa, Nairobi,
Naivasha, Nakuru, Sotik, and Webuye. See Ibid., p. 9.

“involving serious charges, such as murder, robbery with violence, rape, defile-
ment and assault causing actual bodily harm”.114
This survey was an eye-opener. It acknowledged that some progress had up
until then been made in the way the domestic courts in Kenya were dealing with
the post-election violence cases. It stated that the sweeping allegation that “no one
had been convicted in Kenya for the 2007 post-election violence” in respect of
high profile cases was not entirely true. Instead it found that by November 2011,
there had been at least six convictions in respect of high-profile cases in the
domestic courts due to “solid police investigations and assiduous work on the part
of the prosecutors”.115 The convictions were for domestic ordinary crimes in
respect of the felonies of murder, robbery with violence and causing grievous bod-
ily harm.116 Similarly, there had been seven acquittals in respect of felonies of
murder, rape and robbery with violence;117 while nolle prosequi118 had been
entered in respect of three other cases.119
In June 2012, subsequent to the publication of the Human Rights Watch Report,
three more individuals were convicted by the Kenyan High Court for murder
114 Ibid. For more information about all the researched cases, including the accused, the charges
and the outcome of the cases, see pp. 82–92 (Appendix 1).
115 Ibid., p. 39.
116 The six cases consulted by the Human Rights Watch are: Republic v. Robert Kipngetich
Kemboi and Kirkland Kipngeno Langat, Kericho High Court, HCCR 24/08. This judgment was
appealed against as Criminal Appeal 310/09 then pending in the Court of Appeal at Nakuru
(charges: murder of two police officers); Republic v. John Kimita Mwaniki, Kericho High Court,
HCCR 24/08 (now reported as Republic v. John Kimita Mwaniki [2011] eKLR (charges: murder
of 3 persons); Republic v. Charles Kipkumi Chepkwony, Kericho Magistrate’s Court, CR 101/08,
the judgment appealed against as HCCR A30/09 then pending in the High Court of Kenya at
Nakuru (charges: robbery with violence); Republic v. James Mbugua Ndungu and Raymond
Munene Kamau, Naivasha Magistrate’s Court. Police file 764/44/08 (charges: sexual offences
and robbery with violence; conviction secured only for robbery); Republic v. Willy Kipngeno
Rotich and 7 Others, Sotik Magistrate’s Court, CR 8/08 (charges: robbery with violence); and
Republic v. Peter Ochiengo, Nakuru Magistrate’s Court, CR 4001/0 (charges: causing grievous
bodily harm). For brief facts of these cases, see Human Rights Watch 2011, pp. 40–42.
117 The cases are: Republic v. Kiprotich letting & 3 Others (2009) eKLR (charges: murder of 35
people in Kiambaa, Rift Valley); Republic v. Edward Kirui [2010] eKLR (charging police officer
for two counts of murder of demonstrators during the violence); Republic v. Paul Kiptoo Barno,
James Yutor Korir, and Isaiah Kipkorir Leting, Eldoret Magistrate’s Court, CR 387/08 (charged
only with robbery—although it resulted in killing of District Officer, Benedict Omolo and
Chief Inspector of police, Elias Wafula Wakhungu); Republic v. Francis Kipn’geno and Others,
Kericho Magistrate’s Court, CR 86/08 (charges: robbery with violence); Republic v. Erick Kibet
Towett and Simion Kipyegon Chepkwony, Kericho Magistrate’s Court, CR 66/08 (rape); Republic
v. Erick Kibet Towett and Simion Kipyegon Chepkwony, Kericho Magistrate’s Court, CR 66/08
(rape); Republic v. Abraham Karonei and Robert Kimaiyo Tanui, Eldoret High Court, HCCR
15’B/2008 (murder). For brief facts of the cases, see Human Rights Watch 2011, pp. 30–39.
118 For details see infra Sect. 4.4.2.2.4.
119 Republic v. Jackson Kibor, Nakuru Magistrate’s Court, CR 96/08 (ODM politician charged
with incitement to violence); Republic v. Abraham Karonei and Robert Kimaiyo Tanui, High
Court at Eldoret, HCCR 15’B/2008 (murder). See Human Rights Watch 2011, pp. 32, 37 and 39.
related to the post-election violence. Life imprisonment and death penalty were
imposed.120 Therefore, from 2011, the number of concluded cases in respect of
serious crimes was growing steadily.
4.3.1.5 Gaps and Challenges in Respect of the Domestic Prosecutions
As admitted above, the domestic courts have been engaged in prosecuting some of
the post-election cases as ordinary crimes. What is evidently missing, however, is
any tangible progress in respect of cases involving the architects of the violence, the
“big fish”. For example, 5 years after the violence, there was still no single record
of a case against any of the people mentioned in the report of the Kenya National
Commission on Human Rights to be the most responsible for the violence.
Interestingly, the DPP said that he was unaware of the so-called “priority cases”
that the police claimed to have compiled.121 Highlighting the impunity with regard
to the big fish, in June 2011, the Nairobi-based Star newspaper reported as follows:
More cases related to serious crimes have gone forward (…) but they rarely targeted sen-
ior leaders or police use of excessive force. The dozens of convictions for petty crimes are
outnumbered by withdrawals or acquittals for petty and serious crimes alike.122
Furthermore, for the few cases that have been investigated and prosecuted as
ordinary crimes, myriad challenges have been encountered. As already shown, the
number of cases completed successfully in respect of serious crimes has, so far,
been minimal if compared to the seriousness, magnitude and number of crimes
linked to the post-election violence. This is not to suggest that all prosecutions of
crimes related to the post-election violence must necessarily result in convictions.
But it is to argue that investigations or prosecution of such cases must at least por-
tray the degree of seriousness they deserve.
On the contrary, the investigations and prosecution of some of the few cases
that were prosecuted were faced with several limitations; they were devoid of
competence and seriousness and were marred by sheer recklessness on the part of
the prosecutors. In Republic v. Kiprotich Letting et al., for example, the presiding
judge lamented about the outrageous “casual manner” in which the investigations
and prosecution were handled.123 He blamed what he referred to as “shoddy inves-
tigations” of the case on the police,124 noting that courts should not be accused of
120 On 11 June 2012, Peter Kipkemboi Ruto was sentenced to life imprisonment by the Nakuru
High Court for murder of Kamau Kimani on January 1, 2008. See Capital News, 12 June
2012. On 28 June 2012, the High Court of Kenya in Kitale sentenced two people, Mosobin Sot
Ngeiywa and Japheth Simiyu Wekesa, to death for the murder of four people at Kalaha farm in
Trans Nzoia district. The motive for the murder was that the victims had not voted for the MP
that the accused had preferred. See Kenya Daily Post, 29 June 2012.
122 The Star, 10 June 2011.
123 Republic v. Kiprotich Letting & 3 Others (2009) eKLR, p. 15.
124 Ibid., p. 18.
furthering impunity even though it is the investigators and prosecutors who did not
bother to do their job competently. In some cases, mostly those prosecuted by the
police prosecutors, the biggest weakness is that acts which could have constituted
serious crimes were charged as less serious crimes, apparently because the police
prosecutors failed to appreciate the correct nature of the crimes.125 These kinds of
challenges can be attributed to the ill-equipped prosecutorial authority in terms of,
among other things, inadequacy of human resources as illustrated below.
According to Keraiko Tobiko, Kenya’s DPP, by November 2011, there were
only 72 trained prosecutors serving in the DPP’s office, although the requirement
then was 504.126 This extreme dearth of trained lawyers in the office of the DPP is
attributed to factors other than lack or shortage of law graduates in Kenya.127 As a
response to the problem, the 2010 Kenyan Constitution, just like the previous
Constitution, provides that the “Parliament may enact legislation conferring pow-
ers of prosecution on authorities other than the DPP”.128 It is by virtue of this pro-
vision that the task of prosecuting criminal cases has been delegated to lay
prosecutors (non-lawyers).
For instance, in all courts subordinate to the High Court (i.e. Magistrates’
Courts), criminal cases are still prosecuted by police officers.129 By virtue of the
Kenya Police Force Standing Orders “all police officers of or above the rank of
inspector are public prosecutors”.130 There is an exception to this rule which
allows for officers of even a subordinate rank to inspector to prosecute in district
magistrates’ courts.131 Most (almost all) of these police prosecutors are not law-
yers by training. As of November 2011, the number of police prosecutors was 302,
but only six of them had a law degree.132 Although a proposal to phase out the
police prosecutors was announced in 2011, its full implementation is yet to be
realized.133
The challenges highlighted above affect the prosecution of crimes in general;
they are not unique to the prosecution of the crimes associated with the post-elec-
tion violence. But such challenges make it even clearer that, with regard to the
criminal acts related to the post-election violence, the current status quo speaks
125 Human Rights Watch 2011, pp. 35 and 46–51; Alai and Mue 2011, p. 127.
126 Daily Nation, 19 November 2011.
127 This has been associated with the low pay in the public sector i.e., in the government min-
istries, state law office (including the DPP’s office) and the judiciary. As a result, most qualified
lawyers are said to prefer employment in the private legal practice, in the corporate sector or in
academia. Those who join the public sector are allegedly the least competent law graduates, or if
competent, then they quit their jobs after a short time. See Mbote and Akech 2011, pp. 116–167.
128 Constitution of Kenya of 2010, Article 157(12).
129 Daily Nation, 6 July 2011.
130 Kenya Police Force Standing Orders, Chap. 48, s. 7(i).
131 Ibid., s. 7(ii).
133 For more information on police prosecutors in Kenya, see Mbote and Akech 2011, pp. 123–
124; Mwalili 1998, p. 222.

more in favour of the prosecution of the conduct as ordinary crimes in the Penal
Code with which the lay prosecutors and the trained prosecutors are more con-
versant. It would be more difficult for them if they were asked to prosecute it as
“crimes against humanity” as such, the reason being that the additional task or
burden to prove the contextual elements of crimes against humanity would make
their job even more challenging, thereby risking letting the masterminds of the
post-election violence go scot free.
Way Forward?
Grappling with the challenges highlighted above, and faced with endless calls for
fighting impunity by deeds, the Kenyan government continued to act under mount-
ing pressure throughout 2011, thanks to the ongoing ICC process. The pressure to
reconsider a new strategy for effective domestic prosecution of those most responsi-
ble for the post-election violence was felt after 23 January 2012, the date on which
the charges against four of the six Kenyans originally indicted before the ICC were
confirmed.134 Following the ICC’s decisions in this regard, Githu Muigai, the newly
appointed Kenya’s Attorney-General, appointed a “working committee on the ICC”,
a ten-member panel tasked with advising the government on the “way forward”.135
The Committee comprised legal scholars, including two foreign international crimi-
nal law experts, Sir Geoffrey Nice and Mr Rodney Dixon, who acted for the Kenyan
government in its unsuccessful admissibility challenge before the ICC.136
In what appeared to be an attempt to give domestic prosecutions a new impetus,
and apparently this being the only way to keep the ICC away, the working com-
mittee advised the Kenyan government to give “immediate consideration” to the
formulation of a comprehensive policy to deal with the post-election violence
cases, including those before the ICC. It was advised that such policy should
entail, inter alia: (i) a “reasonable balance” between retributive and restorative jus-
tice; (ii) conducting of a special audit of all the crimes committed during the post-
election violence with a view of making an informed decision as to which ones to
prosecute or terminate on the basis of the available evidence and the availability
and or willingness of the witnesses to testify; (iii) appointment of “a special prose-
cutor” with a “strict timetable” for the completion of investigation and prosecution
of the most serious offenders, regardless of rank or position of the perpetrators.137
It was further advised that the envisaged special prosecutor should be assisted
by international experts in performing his or her duties, “taking into account the
134 Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-
382-Red), PTC, 23 January 2012; Decision on the Confirmation of Charges, Ruto, Kosgey and
Sang (ICC-01/09-01/11-373), PTC, 23 January 2012.
135 VOA News, 24 January 2012. The team was first appointed under GN No. 996 of 2012
which was repealed and replaced by GN No. 3222 (Vol. CXIV-No 20) of 16 March 2012.
Formation of the panel was criticized by civil society organisations and the Bar Association as
being geared towards undermining the ICC process; serving “narrow and selfish interests”; “an
insult to Kenyans”; and “a waste of public resources”. African News Online, 26 January 2012.
136 The Star, 18 March 2012. On the admissibility challenge, see infra Sect. 6.5.3.2.2.
137 Daily Nation, 20 March 2012.
challenges faced by the current prosecutorial department and the great need to deal
with the [post-election violence] expeditiously and on a priority basis”.138
According to the recommendations of the working committee, it was no longer
necessary to create a special tribunal to try these cases, given that the judiciary had
been reformed and become competent.139
In November 2012 the Kenya’s new Chief Justice Dr Willy Mutunga stated that
Kenya’s Judicial Service Commission140 was “at an advanced stage of setting up
an International Crimes Division [ICD] of the High Court”141 This name created
an immediate impression that the envisioned Division would first and foremost
prioritize the prosecution of the crimes linked to the 2007–2008 post-election vio-
lence in line with the implication of the report by the working committee. But sur-
prisingly, when the establishment of this Division was announced in April 2013, it
turned out that it may have nothing to do with the post-election violence. It was
made clear by the Attorney-General, who is also a member of Kenya’s Judicial
Service Commission,142 that the ICD would have a prospective effect.143
4.3.1.6 Interim Conclusion
This section has analysed the ordinary-crime approach as a legal framework for
prosecuting the alleged crimes against humanity committed during the post-
election violence in Kenya. It has been demonstrated that prosecuting and punishing
the crimes as ordinary crimes under the Kenyan Penal Code can achieve the same
purposes as prosecuting and punishing them as “crimes against humanity” as such.
This argument gives prominence to the conduct which is targeted by the punishment
rather than to the label or characterization under which that conduct is punished.
Consequently, the argument that Kenya did not (or does not) have any laws to pros-
ecute the alleged crimes against humanity linked to the post-election violence has
been dismissed. It has been shown that Kenya has, to some extent, used its Penal
Code to prosecute the crimes committed during the violence, despite the several
challenges encountered. But what remains the biggest flaw is that such prosecutions
have not targeted those listed as being most responsible for the crimes.
138 Ibid.
139 Ibid. See infra Sect. 5.3 regarding the reforms implemented in the Judiciary.
140 See Constitution of Kenya of 2010, Articles 171 and 172.
141 See remarks by the Kenya Chief Justice on the international justice system, 26 November
2012. http://www.judiciary.go.ke/portal/assets/files/Reports/WAYAMO%20MEETING%20ON%20
THE%20INTERNATIONAL%20JUSTICE%20SYSTEM.pdf. Accessed September 2014. See also
The East African, 1 December 2012.
142 Constitution of Kenya of 2010, Article 171(2)(e).
143 Capital News, 30 April 2013. See also “CJ Speaks On International Crimes Division”
[video] published by Kenya Citizen TV on You Tube, 30 April 2013 http://www.youtube.com/

watch?v=GW4uytJVReU. Viewed August 2014.
4.3.2 Prosecuting as Crimes Against Humanity as Such
Having analysed the ordinary-crime approach and having concluded that the
approach provides an adequate legal framework to prosecute the criminal acts
committed during the post-election violence, this section explores one more
option, namely the possibility of also prosecuting the acts as crimes under interna-
tional law as such i.e., under their label as “crimes against humanity”. The section
analyses whether it would be possible to do so on the basis of customary interna-
tional law or the Kenya’s International Crimes Act of 2008.
4.3.2.1 Relying on International Customary Law
4.3.2.1.1 Introductory Note
Crimes against humanity had already been established as crimes under customary
international law even before the adoption of the ICC Statute144 or the occurrence
of the post-election violence in Kenya. A customary international crime is a pro-
hibited criminal conduct which has acquired a jus cogens status, thereby constitut-
ing it as obligatio erga omnes. Consequently, for such crimes, a non-derogable and
a mandatory duty exists for states to prosecute them without any restriction.145
The preceding paragraph would suggest or imply that, theoretically, the ulti-
mate codification of crimes against humanity into the domestic laws of Kenya in
2008 was merely a “declaration” or “reinstatement” of a pre-existing set of crimes.
Arguably, the crimes could, as a result, have been directly enforceable in the
domestic courts, whether or not there was an implementing legislation. One of the
reasons given for this argument is that in common law countries, such as Kenya,
criminality may be based on both written and unwritten laws.146 However, actual
practice from common law countries indicates that domestic courts are not pre-
pared to prosecute and punish individuals charged with crimes only envisaged in
customary international law but which are not expressly codified in the domestic
144 Cf. National Commissioner of the South African Police and another v. Southern Africa
Litigation Centre and others (485/2012) [2013] ZASCA 168 (27 November 2013), para 40, in
which the South African Supreme Court of Appeal stated that the ICC Statute is “a codification
of sorts” of customary international law.
145 See Bassiouni 1996, pp. 63 et seq. (pointing out, at p. 68, that apart from the four core crimes
under international law, the crimes of piracy, slavery, torture and slave-related practices are also
jus cogens).
146 See Werle 2009, p. 119. On common law crimes, generally see LaFave (2003), pp. 74–85.
laws.147 This is without exception to important common law jurisdictions such as

the United Kingdom148 and Australia.149 It is, therefore, important to find out the
position in Kenya.
4.3.2.1.2 Enforceability of Customary Law in Kenya: An Overview
The same reluctance cited above with respect to Australia and United Kingdom is
foreseeable in the Kenyan courts. This is true despite the fact that, strictly speaking,
the legal system of Kenya is a mixture of common law and customary law. Part of
what is usually referred to as “African customary law” is enforceable in the Kenyan
domestic courts even though it is uncodified and not uniform as customs differ from
one ethnic (tribal) community to another. In fact, this particular category of law, like
Acts of Parliament and the Constitution, forms an independent source of law in
Kenya. However, the African customary law is enforceable only insofar as it relates
to matters of civil nature, mostly succession and marriage. The so-called “African
customary crimes” are not enforceable in the Kenyan courts for that matter.150
There is no record of prosecution of any of the core crimes under international
law in the Kenyan domestic courts solely on the basis of its status under customary
international law. However, there is evidence of prosecution of the customary crime
147 Cassese 2005, p. 224; Jeßberger and Powell 2001, p. 350; Werle 2009, p. 119. For instance,
in the UK the old view that courts had a general residual power to create new crimes (com-
mon law crimes) has been dismissed. See Knuller (Publishing, Printing and Promotions) Ltd.
v. Director of Public Prosecutions [1973] A.C. 435; R. v. Jones and Others [2006] UKHL 16
[2006] UKHL 16, p. 42, para 102. In South Africa, too, the practice has ceased. See Maqungo
2000, p. 186.
148 In the case of R v. Johns and Others [2006] UKHL 16, the House of Lords was called upon to
address the question whether the crime of aggression formed part of English criminal law in the
absence of domestic legislation. It had been argued that since the crime of aggression was recog-
nized as a customary crime under international law, then such crime was directly enforceable in
the UK’s national courts without a need for any domestic statute or judicial decision. The House
of Lords decided that the crime of aggression was not part of the domestic law of England even
though there was no doubt that it had acquired a jus cogens status. In particular, their lordships
stated categorically that “new domestic offences should be debated in Parliament, defined in a stat-
ute and come into force on a prescribed date. They should not creep into existence as a result of an
international consensus to which only the executive of this country is a party.” See p. 29, para 62.
For a commentary on this judgment see Bantekas 2010, p. 25, fn 83; Q‘Keefe 2006, pp. 473–476.
149 In Nulyarimma v. Thompson (1999) 165 ALR 621, the Australian Federal Court, by major-
ity, ruled that international customary criminal law does not form a basis upon which to base an
indictment for genocide. The court ruled that although genocide was recognised as a jus cogens,
and despite the fact that Australia had ratified the Genocide Convention since 1949, the domestic
courts in Australia could not exercise jurisdiction over the crime of genocide or any other inter-
national crime, whether created by treaty or customary law, unless legislation had been imple-
mented to apply the crime in domestic law. For more details generally see Triggs 2003, pp. 507
et seq.; Balkin 2005, pp. 114–140. For a critique of the judgment see Douglas 2001, pp. 1 et seq;
Mitchell 2000, pp. 15 et seq.
150 See. Juma 2002, pp. 459 et seq.; Ojienda and Aloo 2011; Reed 1964, pp. 164 et seq.
of piracy on the basis of universal jurisdiction. But as it will be shown shortly, the
Kenyan courts were able to exercise jurisdiction over the crime of piracy not solely on
the basis of its jus cogens character, but on the basis of a clear Penal Code provision.
The Interpretation and General Provisions Act151 is the law that governs how
Kenyan laws should be interpreted. Pursuant to this legislation, the interpretation of
the word “offence” as applicable in Kenya does not seem to cover a customary law
offence, for it is confined to a “written law”. Accordingly, the word “offence” is
defined as “a crime, felony, misdemeanour or contravention or other breach of, or
failure to comply with, any written law, for which a penalty is provided”.152
Furthermore, a “written law” is restrictively defined to include three types of laws,
namely: (i) an Act of the Kenyan Legislature; (ii) an applied law; or (iii) a subsidiary
legislation which is currently in force in Kenya. And an “applied law” means an Act
of a legislature of a foreign country or an Order in Council of the United Kingdom
or any subsidiary legislation made under them and which is in force in Kenya.153
The preceding paragraph speaks against a possibility of bringing charges in the
Kenyan courts solely on the basis of the jus cogens nature of a norm, unless there
is evidence that such a norm had been codified (written) domestically at the time
of its breach. It would not matter if the customary norm had already been codified
in an international instrument. On this basis, a legal practitioner in Kenya believes
that the domestic courts would not be prepared to accept international customary
law as a sole basis for charging the crimes under international law allegedly com-
mitted during the post-election violence.154
In spite of the restrictive definition of the word “offence” as outlined above, the
Penal Code of Kenya theoretically retains the enforceability of the “unwritten” com-
mon law offences. Particularly, the Penal Code clearly provides that although it codi-
fies individual offences, nothing in it shall affect or prevent “the liability, trial or and
punishment of an offence against the common law”.155 But since crimes under inter-
national law per se are not common law crimes156 in the sense of the Kenyan Penal
Code, this provision cannot be extended by analogy to include them. Moreover,
practice shows that even big common law jurisdictions such as the UK, the USA,
Australia and Canada have gone a step further to codify what used to be unwritten
common law crimes, the fact which indicates that the enforceability of unwritten
(uncodified) crimes (if any) remains largely theoretical.157
151 Cap. 2 (R.E 2008).

152 Interpretation and General Provisions Act, s. 3 (emphasis added).
153 Ibid.
154 Views of Mr. Eugene Nyamunga, advocate of the High Court of Kenya and the subordinate
courts thereto, a doctoral researcher at the Tanzanian-Germany Centre for Post-graduate Studies
in Law, TGCL (interviewed by author on 13 August 2011 at Bayreuth University, Germany). Cf.
Fernandez 2006, p. 80 (advancing a similar argument about enforceability of the crime of torture
in South Africa).
155 Kenyan Penal Code, s. 2(a).
156 Regarding how common law crimes developed, see LaFave 2003, pp. 74–75.
157 Cf. Ambos 2010, 163–164; LaFave 2003, pp. 74–77.
4.3.2.1.3 Considerations from Specific Jurisprudence of Kenyan Courts
As shown earlier, under the old Constitution (1963–2010), Kenya followed a

strictly dualist approach of implementing international law pursuant to Okunda v.
Republic. As a result, international treaties or customary law would be enforceable
in domestic courts only if expressly codified and domesticated. However, from
2002, a new jurisprudential trend, which started to “loosen” the strict dualist prac-
tice, specifically with regard to human rights treaties, started to emerge. Thus,
from Rono v. Rono158 onwards, various rulings stated that for purposes of interpre-
tation of domestic laws, Kenyan courts could rely directly on international cus-
tomary law embodied in human rights treaties that had been signed without
reservation “even in the absence of implementing legislation”. According to the
High Court, this consideration was necessary to ensure that Kenya “was moving
intandem with emerging global culture”.159
A question that arises is whether this reasoning could also be applied with
respect to customary international criminal law which entails not merely “an
emerging global culture” but a settled principle of zero tolerance to impunity for,
inter alia, international customary crimes contained in the ratified treaties. This
question is yet to be addressed by the Kenyan domestic courts.
One could further consider the often-cited prosecutions of the customary crime
of piracy in Kenya, especially the 2009 High Court Judgment in Hassan M.
Ahmed v. Republic.160 However, two points must be clarified before proceeding
further. First, piracy is not a crime under the ICC Statute, but is one of the earliest
jus cogens crimes for which universal jurisdiction applies.161 Second, unlike
crimes against humanity, which had not been domesticated in Kenya at the time of
the post-election violence, piracy, as charged in Hassan v. Republic, had already
been codified as a crime in the domestic laws of Kenya at the time of its commis-
sion.162 Therefore, the issue in Hassan v. Republic was not whether jurisdiction
over the crime of piracy could be founded solely on its jus cogens nature. Rather,
the issue was whether the trial court was right in exercising universal jurisdiction
in respect of pirates arrested in the high seas, for it was argued that Kenya lacked
any traditional jurisdictional links to them.
158 Decision on Civil Appeal No. 66 of 2002 (Court of Appeal at Eldoret), reported in (2005)
eKLR and also in (2008) 1 KLR (G & F) 803.
159 See Rono v. Rono and another (2008) KLR (G & F) p. 813. See also Kenya Airways
Corporation Ltd v. Tobias Oganya Auma & 5 others [2007] eKLR p. 15; Republic v. Minister
for Home Affairs & 2 others Ex Parte Sitamze [2008] eKLR; Rose Moraa & another V. Attorney-
General [2006] eKLR. For more details see Ambani 2010, p. 30; Viljoen 2007, p. 540.
160 [2010] eKLR, decision of High Court at Mombasa, 12 May 2009.
161 See Cassese 2008, p. 28; Cryer et al. 2007, pp. 33; Werle 2009, p. 30, fn. 156.
162 Piracy was then a crime under s. 69 of the Penal Code of Kenya. Currently it is a crime under
the Merchant Shipping Act of 2009, s. 371.

The relevant part of Hassan v. Republic for the purposes of this book comes at
the end of the judgment. The High Court made a finding by way of an obiter dic-
tum (i.e. remarks based on hypothetical facts assumed by the court). It first quoted
the Penal Code provision establishing the crime of piracy in Kenya to show that it
was indisputably an offence under the existing domestic written law. Having done
so, the learned judge went on to opine:
Even if the Penal Code had been silent on the offence of piracy, I am of the view that the
Learned Principal Magistrate would have been guided by the United Nations Convention
on the Law of the Sea which defines piracy in Articles 101 (…) I would go further and
hold that even if the Convention had not been ratified and domesticated, the Learned
Principal Magistrate was bound to apply international norms and Instruments since
Kenya is a member of the civilized world and is not expected to act in contradiction to
expectations of member states of the United Nations.163
If, according to the High Court, the magistrate would have been “bound” to apply
the definition of piracy in an international convention “even if the Penal Code had
been silent”, a question that arises is whether this statement opened the Pandora’s
box to allow other crimes of the same nature i.e., those that are also jus cogens
constituting obligatio erga omnes, including crimes against humanity, to be
directly prosecutable as such in Kenya on the basis of their customary nature. A
US-based Kenyan scholar, James Gathii, is of the view that the answer to this
question is in the negative. He rightly bases his argument on the common law prin-
ciple of stare decisis, which is also applicable in Kenya, and on English judgments
which have expressly rejected a direct enforceability (in domestic courts) of undo-
mesticated international customary crimes.164 In Kenya, and generally in the com-
mon law tradition, the part of a judgment which creates binding law (precedent) is
the ratio decidendi (i.e. the one that disposes of the issues raised). An obiter dic-
tum does not create law, but merely carries a persuasive value.165
Therefore, the opinion of the judge quoted above, which was an obiter dictum,
did not change the status quo. Moreover, it cannot be argued with confidence that
domestic courts in Kenya would interpret a criminal law treaty in the same way
they would do for a treaty on socio-economic human rights. This is because, by
its nature, criminal law involves the curtailing of personal liberty of individuals
(accused). As a result, whenever doubt or ambiguity exists, courts tend to be very
strict in interpreting and applying rules of criminal law, and always to the advan-
tage of the accused person.
163 See Hassan M. Ahmed v. Republic [2010] eKLR (emphasis added).

164 He argues that “Piracy jure gentium and other crimes of an international character that are
triable in domestic courts cannot be directly created by customary or international law without a
domestic statute conferring such jurisdiction”. See Gathii 2010, p. 8, fn 28. Note, however, that
judgments of English courts are only persuasive (are not binding) to Kenyan courts. See Hussain
2003, p. 16.
165 See Hussain 2003, p. 16.
4.3.2.1.4 Interim Conclusion
There is no doubt that crimes against humanity had become jus cogens crimes
before their commission during Kenya’s 2007–2008 post-election violence. Thus,
if the criminal acts committed during this particular violence were to be charged
domestically as crimes against humanity per se by directly relying on customary
international law, such charges would not, in principle, violate the principle of
legality. However, as it has been shown, practice clearly indicates that domestic
courts in common law countries have, in such circumstances, expressly declined
to entertain an indictment made solely on the basis customary international law
which is not part of their written domestic laws. In addition, at the time of com-
mission of the alleged crimes in Kenya, there was no provision conferring jurisdic-
tion over such crimes on the domestic courts. As such, it may, therefore, not be
possible to prosecute crimes against humanity as such solely on the basis of their
jus cogens status, for the courts might claim not to have jurisdiction.
4.3.2.2 Relying on the International Crimes Act of 2008
4.3.2.2.1 Domestication of the ICC Statute
As already stated, although at the time of the post-election violence Kenya had
already ratified the ICC Statute, it had not domesticated it; it was purportedly still
“in course with internal procedures for its domestication”.166 The Waki
Commission recommended the fast-tracking of the domestication process, expect-
ing that the resulting law would be used by the proposed Special Tribunal for
Kenya to prosecute the crimes committed during the violence.167 This was done
through a comprehensive piece of legislation, the International Crimes Act of
2008, which came into force on 1 January 2009.168 The purpose of this legislation
is to “make provision for the punishment of certain international crimes, namely
genocide, crimes against humanity and war crimes, and to enable Kenya to co-
operate with the International Criminal Court established by the Rome Statute in
the performance of its functions”.169
166 See Statement by Mr. Z.D. Muburi-Muita, Ambassador and Permanent Representative of
Kenya to the UN at the 62nd Session of the UN General Assembly, New York, 1 November 2007,
p. 1. http://www.iccnow.org/documents/Kenya.pdf. Accessed August 2014.
168 For its legislative history see Ford 2008, p. 57. Kenya followed the 2004 Commonwealth
domesticating model legislation. See Parliament of Kenya 2008, p. 907. This model legislation
was revised in 2011. See Commonwealth Secretariat (2011).
169 International Crimes Act of 2008, Preamble.
4.3.2.2.2 General Overview of the Act
The Act, to which the ICC Statute is annexed as a Schedule, domesticates by refer-
ence all the core crimes and almost all the general principles of criminal law con-
tained in the ICC Statute.170 Moreover, it requires that in interpreting the Act
Kenyan courts must first “have regard” to the ICC’s Elements of Crimes before the
Kenyan Penal Code, and that in the case of a conflict between the two, the former
prevails. The Kenyan courts can exercise jurisdiction over the crimes mainly on
the basis of the territoriality or nationality principles.171 Universal jurisdiction can
also be exercised, but only if the perpetrator is present in Kenya after committing
the offence elsewhere.172
The Act is slightly broader than the ICC Statute as regards crimes against
humanity. It defines crimes against humanity to also include an act defined as such
in conventional or customary international law “that is not otherwise dealt with in
the Rome Statute”.173 However, the Act has a few inconsistencies with the ICC
Statute. For example, it does not domesticate the principle under article 27 of the
Statute which outlaws official capacity of the suspect as a justification for non-pros-
ecution for crimes under international law. The relevancy of official capacity is only
outlawed in relation to Kenya’s exercise of duty to respond to requests for transfer
or surrender of an immune person to the ICC or another state.174 This seems to have
been a deliberate omission to make the Act consistent with the then Constitution,
170 Ibid., s. 7(2).

171 See Ibid., s. 8(i)(a) and (b). For territoriality principle, jurisdiction is exercised when perpe-
trator of whatever nationality commits the crime on the territory of Kenya. As regards nationality
principle, the courts have jurisdiction when the perpetrator himself or the victim is a citizen of
Kenya, regardless of where the crime happens. Courts also have jurisdiction if, at the time of
commission of the crime, the perpetrator was a national of another state which was engaged in
an armed conflict against Kenya, or if the victim was a national of another state which was allied
with Kenya in an armed conflict.
172 Ibid., s. 8(1)(c). Kenya’s official position given in 2008 with regard to universal jurisdiction
was that it is no longer for national courts of states to exercise such jurisdiction at the current
time where the ICC is in place, and that such mandate jeopardises the principles of equality and
rule of law as it is being abused by courts in the developed countries against leaders of the devel-
oping countries. See pp. 4–5 of the Statement of the Attorney-General of Kenya to the seventh
session of the Assembly of States Parties to the ICC, 22 November 2008. http://www.icc-cpi.
int/iccdocs/asp_docs/library/asp/ICC-ASP-ASP7-GenDebe-Kenya-ENG.pdf. Accessed August
2014. See also Okuta 2009, p. 1075. Note, however, that: (i) contrary to what is implied in
Kenya’s position stated above, the ICC does not exercise universal jurisdiction; its jurisdictional
powers are limited to the nationality and territoriality principles. See ICC Statute, Article 12; (ii)
Kenya’s belief that the ICC could, unlike third states abusing universal jurisdiction, stand for
“equality and rule of law” changed drastically when the ICC intervened in Kenya. The opinion
currently held by Kenya is that the ICC is now being abused by Western countries against the
interests of developing (African) countries. See infra Sect. 6.7.4.
173 International Crimes Act of 2008, s. 6(4).
174 Ibid., s. 27. Also see Murungu 2011, p. 55 (wondering why this clear provision was not
enforced against President Omar Al Bashir of Sudan when he visited Kenya on 27 August 2010,
given that there was a pending ICC’s arrest warrant against him); Okuta 2009, p. 107.
which granted such immunity to the President.175 However, this omission has now
been cured by Article 143(1) of the Constitution of Kenya of 2010 which, although
it extends similar immunity to the President, has introduced an exception that
explicitly removes “international crimes” from the scope of such immunity.
Initially when the Act was enacted, two concerns emerged. The first concern
was that in view of the existing Constitution, the President could grant pardon to
people convicted for the international crimes under the Act pursuant to the
President’s constitutional prerogative powers of mercy.176 Although there is abun-
dant literature clearly illustrating the fact that the culture of impunity has previ-
ously been entrenched in Kenya, especially with respect to certain types of crimes
or perpetrators, there are only a few incidents in which such impunity is said to
have resulted from an obvious “abuse” of the prerogative powers of mercy vested
in the President.177 However, the possibility of abuse for political reasons, espe-
cially when high-profile political figures are involved, cannot be completely ruled
out. It is noteworthy that these powers have been retained in the Constitution of
Kenya of 2010, but a check has been introduced to some extent.178
Another issue that has raised a concern relates to inconsistencies between the
International Crimes Act and the ICC Statute or with other domestic criminal law
legislation as far as penalties and the minimum age of criminal responsibility are
concerned. While the maximum penalty that can be imposed by the ICC is life
imprisonment,179 the maximum penalty for murder constituting a crime under the
Act is death sentence.180 Similarly, the minimum age of criminal responsibility for
175 See Okuta 2009, p. 1073. Such powers were provided for under Constitution of Kenya of
1963, Article 14(1).

176 Constitution of Kenya of 1963, Article 28; Okuta 2009, p. 1074.
177 See Mbote and Akech 2011, pp. 68–69.
178 See Constitution of Kenya of 2010, Article 133(1). In exercising the prerogative powers of
mercy under this constitution, the President is obligated to act in accordance with the advice of the
Advisory Committee on Prerogative of Mercy created in the provision cited. Pursuant to Article
133(2) of the same Constitution, the Power of Mercy Act of 2011 sets the criteria to be followed by
the said committee in giving advice to the President. Although this law does not have any express
provision that outlaws pardon or amnesty in respect of international crimes, its section 22 provides
for the “nature and seriousness of the crime” and “interests of the community and the victims” to be
among the criteria to be considered before pardon is given. Since there is an international law princi-
ple (see infra Sect. 5.2.3.2.4) that discourages the granting of amnesty or pardons for the “most seri-
ous crimes” of international character, it is not expected that in normal circumstances the Committee
can give advice which defeats the desire to put an end to impunity for such crimes. On the emerging
opino juris on amnesty in relation to the core crimes, generally see Obura 2011, pp. 11–31.
179 ICC Statute, Article 77(1).
180 S. 6(3)(a) of the International Crimes Act 2008 provides that conviction for wilful killing
amounting to an international crime shall be punished as for murder. Under section 204 of the
Kenyan Penal Code, murder is punishable by death. It seems that the drafters of the Act correctly
decided to make it consistent with the Penal Code rather than the ICC Statute, in order to make
sure that murder amounting to “a serious crime of concern to the international community” is not
treated more leniently than an “ordinary” murder. This provision is likely to remain unchanged as
long as Kenya maintains the death penalty.
the core crimes domesticated in the Act is 18 years181; it is much higher than the
lowest age of criminal responsibility in other domestic crimes.182
4.3.2.2.3 Implications of the 2010 Constitution on the Act
The new Constitution of Kenya, adopted on 27 August 2010, introduced a new

legal position with regard to enforceability of international law in the domestic
courts in Kenya. It officially converted Kenya from its previous strict dualist prac-
tice to a monist practice of implementation of international treaties.183 By virtue of
Article 2 of the 2010 Constitution, both conventional and customary norms of
international law become directly applicable and enforceable in Kenyan domestic
courts without necessarily having to be domesticated, provided that they do not
conflict with the Constitution.184 According to Gathii, the entire series of treaties,
including criminal law treaties, which Kenya had ratified but not domesticated,
became enforceable as part of Kenyan law from the date on which the new consti-
tutional provision became operational.185
There is a view that the new position above i.e., the change from dualism to
monism per se, has created a possibility for the International Crimes Act of 2008
to be applied retrospectively, making it possible to charge the alleged crimes
against humanity committed during post-election violence, 1 year before the Act
was enacted. The next section outlines such a view and related arguments, and also
analyses such a possibility.
181 See s. 7(1) of the International Crimes Act of 2008 (domesticating Article 26 of the ICC
Statute). Under Article 26 of the Statute, the minimum age of a perpetrator who can be pros-
ecuted and held criminally responsible for the core crimes in the ICC Statute is 18 years.
182 Generally, the lowest age of criminal responsibility in Kenya is 8 years. Section 14(1) of the
Penal Code completely exonerates a child under the age of 8 years from criminal responsibil-
ity. Section 14(2) requires that a child between 8 and 12 can be criminally liable, but only if it
is proved that at the time of the act or omission the child had the capacity to know that he or she
“ought not to” do the act or make the omission. However, as far as rape is concerned, an excep-
tion exists: the minimum age of criminal responsibility is strictly 12 years (see s. 14(3) of the
Penal Code). Therefore, 18 years is set as minimum age of criminal responsibility only for pur-
poses of proceedings carried out under the Kenya’s International Crimes Act. However, this will
not bar prosecution of child perpetrators of the conduct criminalized in the crimes of genocide,
crimes against humanity or war crimes as part of “ordinary crimes” under the Penal Code or the
Sexual Offences Act, which provide for a lower age of criminal responsibility.
183 On the monism see Bradley1999, p. 530. Nsereko 2000, p. 174.
184 Constitution of Kenya of 2010, Article 2(1) and (4). The Constitution provides that “the
general rules of international law shall form part of the law of Kenya”, and that “any treaty or
convention ratified by Kenya shall form part of the law of Kenya under this Constitution”. See
Article 2(5) and (6), respectively.
185 See Gathii 2011.
4.3.2.2.4 Evaluation of Retroactivity Vis-a-Vis the International

Crimes Act
The question whether the International Crimes Act could be used to try the alleged
crimes against humanity relates to the principle nullum crimen, nulla poena sine lege
(principle of legality). Among other things, this principle seeks to enhance certainty
of the law and safeguard individuals against arbitrary actions of state, thereby
strengthening the rule of law.186 To achieve this, the principle embodies, inter alia,
two main prohibitions. Firstly, it prohibits the punishing of a conduct which had not
been clearly defined by the relevant legal order as constituting a criminal offence at
the time of its occurrence. Secondly, it prohibits an imposition of a penalty which
had not been clearly defined, or which is heavier than that which had been defined
by law at the time of the commission of the alleged crime.187 In view of these prohi-
bitions, one question arises: “When an international crime is prosecuted in a national
court, is the law under which the prosecution occurs national or international? For
purposes of legality, which law must be in place at the time of the act?”188
Initially, some commentators noted that it was “not clear” whether Kenyan
domestic courts would agree to apply the International Crimes Act of 2008 retro-
spectively.189 Others argued that the Act “cannot be” applied retrospectively.190
Okuta, for example, argued that the Act is “merely a tool for the future”, implying
that, apparently, its application can only remain prospective.191 However, later,
when the 2010 Constitution was adopted, the arguments changed slightly because
of Article 50(2)(n) of the Constitution which provides:
Every accused person has the right to a fair trial, which includes the right not to be con-
victed for an act or omission that at the time it was committed or omitted was not (i) an
offence in Kenya; or (ii) a crime under international law.192
In view of this provision, the Attorney-General’s working committee on the ICC

(see supra Sect. 4.3.1.5) advised the Kenyan government as follows:
As a matter of law, the committee notes that “international crimes” (which include crimes
against humanity) that were allegedly committed during the [post-election violence] are
186 Bassiouni 2003, pp. 180, 215–256; Cassese et al. 2009, pp. 437–441.
187 See Bassiouni 2003, pp. 179–226; Cassese 2013, pp. 23–24; Cryer et al. 2007, pp. 13–16;
Schabas 2000, p. 522; Worster 2011, pp. 973–979. Generally on this principle see Gallant 2010;
Hallevy 2010; Kenyans for Peace with Truth and Justice and Kenya Human Rights Commission
2013, p. 21.
188 See Gallant 2011, p. 30; Spiga 2011, p 10.
189 See, e.g., Sing’Oei 2010, p. 14, fn 50; Alai and Mue 2011, pp. 1223–1224; Allai and Mue
2010, p. 2; Open Society Foundations 2011, p. 85.

190 See, e.g., Okuta 2009, p. 1074; International Centre for Policy and Conflict 2009, p. 9.
191 A. Okuta 2009, p. 1074 (arguing that even if the Special Tribunal for Kenya materialized, this
Act would still only have served “a limited purpose” in addressing the crimes connected to post-
election violence). For a similar view see Sing’Oei 2010, p. 14, fn 50.
192 Emphasis added. NB. Under the old constitution, the scope of the principle of legality did not
include crimes under international law. See Constitution of Kenya of 1963, Article 77(4).
triable in Kenya despite being committed before the coming into force of the International
Crimes Act on 01 January 2009…. The provisions set out in Article 50(2)(n) of the
Constitution … permit Kenya to have jurisdiction in respect of crimes that were commit-
ted under international law at the time of [the violence].193
The Kenyan government put forward the same argument before the ICC.194 For
the reasons given below, it is submitted that the advice in the above-quoted para-
graph is sound and could be implemented. However, a minor but crucial amend-
ment to the International Crimes Act of 2008 would be required.
Pursuant to what Bassiouni refers to “the substantive aspect” of the principle of
legality, if, at the time of commission of a crime under international law, a state had
ratified a convention establishing the crime, or if the crime had acquired a jus
cogens status, then such a crime could or should be prosecuted in national courts of
that state without the fear of breaching the principle of legality.195 This view is
based on the meaning ascribed to the principle of legality under the provisions of
several international instruments, including Article 15 of the International Covenant
on Civil and Political Rights (ICCPR)196; Article 11 of the Universal Declaration of
Human Rights (UDHR)197; and Article 7 of the European Convention on Human
Rights (UCHR).198
According to the Kenyan Interpretation and Application of Laws Act,199 the
date on which a piece of legislation becomes operational in Kenya can be either (i)
the day on which the legislation is published in the Gazette; or (ii) a day specified
in that legislation to be the date on which it “shall come or be deemed to have
come” into operation.200
The fact that a piece of legislation in Kenya can be “deemed to have come into
operation” suggests that the Kenyan Parliament can assign a retrospective opera-
tional date to a piece of legislation, thereby “deeming” it to have come into force
on a date earlier than that on which it was passed. However, a caveat must be
added here: For criminal law legislation, such retroactivity may (and should) be
193 Quoted in Kenyans for Peace with Truth and Justice and Kenya Human Rights Commission
2013, p. 21.
194 See, e.g., Application on Behalf of the Government of the Republic of Kenya Pursuant to
Article 19 of the ICC Statute, Situation in the Republic of Kenya (ICC-01/09-02/11-26), PTC, 26
April 2011, para 58; Open Society Foundations 2011, pp. 85 and 107.
195 See Bassiouni 2005c, pp. 374–376; Ferstman and Machover 2008, p. 13 There is also the
“strict” or “formal” aspect of the application of the principle of legality which is followed in
some countries. This requires that a crime can be prosecuted in a national court only if at the time
of its commission it had already been codified and published, for example, in an Official Gazette.
Cf. Bassiouni 2005c, pp. 372–374; Lattanzi 2001, p. 186. This was the approach taken by the
U.K. courts in the Pinochet case R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte
Pinochet Ugarte [1999] 2 WLR 827. For more details see Fox et al. 1999, pp. 687 et seq.
196 Adopted on 16 December 1966 and entered into force on 23 March 1972.
197 UN General Assembly Resolution No. 217 of 10 December 1948.
198 Adopted 1950; entry into force 3 September 1953.
199 Cap. 2 (R.E 2008).
200 Interpretation and General Provisions Act, ss. 9(1) and 9(3), respectively.
permitted or tolerated only if it does not violate the purposes of the principle of
legality. In this regard, it is submitted that retroactivity is justifiable in two scenar-
ios. The first scenario is where it aims at conferring jurisdiction ratione materiae
or jurisdiction ratione temporis on the national courts for crimes already existing
under customary international law over which the domestic courts would not have
had jurisdiction had it not been so expanded. The second scenario is where such
retroactivity entails a retrospective re-labelling (re-naming) of an already criminal-
ized conduct, provided, of course, that the conduct in the “new label” does not
carry a punishment which is heavier than that which it would otherwise have car-
ried had it been prosecuted under the “old label”.201
On the basis of the foregoing, it is submitted that, the Kenya’s International
Crimes Act of 2008 could be made to apply retroactively, and thereby charge the
crimes against humanity committed 1 year before the enactment of the Act. Such
legislative amendment would only be retrospective from a chronological point of
view, but would not otherwise lead to the punishment of non-criminalized conduct
at the time of its commission.202
There is the argument that since the Kenyan International crimes Act became
operational “well after the commission of the crimes in question”, the principle
against retroactivity is “a feasible defence if raised at the domestic level, even
though such a defence would not stand before an international tribunal”.203 The
argument implies two things. First, it suggests that because “crimes against human-
ity” as such were not provided for (codified) anywhere in the Kenyan domestic laws
at the time of the post-election violence, then the perpetrators would not have been
aware of their prohibition. Second, the argument also suggests that there should be a
distinction or dichotomy between domestic courts and international tribunals in the
manner in which they apply and interpret the principle of legality.204
The argument above is not entirely convincing because, as already shown, irre-
spective of their legal characterization under international or domestic law, the
substantive conduct in the criminality committed during the post-election violence
had already been criminalized under the Kenyan Penal Code. The perpetrators
could not, therefore, purport to have been unaware of the prohibited conduct (or at
least the illegality thereof) at the time of its commission.205 For purposes of the
principle of legality, it is enough that the criminalization of the conduct had been
established; it does not matter whether the accused knew the legal label or charac-
terization of the conduct under international law.
201 Cf. Bassiouni 2005c, pp. 374–376; Ferstman and Machover 2008, p. 14.
202 Cf. Kenyans for Peace with Truth and Justice and Kenya Human Rights Commission 2013,
pp. 21–23; Spiga 2011, p. 10.
203 Sing’Oei 2010, p. 14, fn. 50.
204 This reasoning comes from the seemingly erroneous and much criticized decision of the
Economic Community of West African States (ECOWAS) Court in Hissein Habré Cl Republique
Du Senegal Role General No Ecw/Ccj/App/07/08 Arret No: Ecw/Ccj/Jud/06/10 du 18 novembre
2010. For a critical evaluation of this judgment, see Hessbruegge 2010; Spiga 2011, pp. 5 et seq.
205 For a similar argument see Spiga, 2011, pp. 19–20.
A similar argument pertaining to retroactivity was advanced by the defendants

during the Nuremberg trial in respect of crimes against peace and crimes against
humanity for which individuals were prosecuted for the first time in history. They
claimed that these two categories of crimes were non-existent prior to their alleged
commission, and that, prosecuting them before the IMT was, therefore, a violation
of the principle of nullum crimen sine lege. Rejecting this argument, the IMT indi-
cated that the principle of legality could not be used as an absolute bar to state’s
sovereignty in punishing criminality. The Tribunal established that the conduct
was already “illegal” under the existing international law and arguably criminal. It
then justifiably observed as follows:
The maxim “nullum crimen sine lege” is not a limitation of sovereignty, but in general a
principle of justice. To assert that it is unjust to punish those who in defiance of treaties
have [planned to attack] neighbouring states without warning is obviously untrue, for in
such circumstances the attacker must know that he is doing wrong, and so far from it
being unjust to punish him, it would be unjust if his wrong were allowed to go
unpunished.206
Applying the above IMT ruling in the context of Kenya, it could be argued that it is
within Kenya’s sovereignty if, as has been suggested, it amended its domestic laws
retroactively to provide for the alleged crimes against humanity. However, if the
crimes are to be prosecuted as crimes under international law as such, the defini-
tional criteria as well as the individual acts in respect of which such amendment
should cover must be only those which had already indisputably acquired a jus
cogens status at the time of their commission. In that regard, such amendments
would not create new crimes as such, but would only be codifying crimes which had
already existed under customary international law. The amendment would only play
three roles, namely: (i) to put the crimes in a “written law” on the basis of which the
charge can be brought; (ii) to prescribe the applicable penalties and (iii) as already
stated, to confer jurisdiction on the domestic courts over the crimes. The third role
has precisely been described as “retroactive expansion of criminal jurisdiction”.207
Other common law jurisdictions, particularly Canada and New Zealand, have
domesticated the ICC Statute retrospectively to achieve similar goals. According
to the Canada’s Crimes against Humanity and War Crimes Act of 2000, interna-
tional crimes committed before the adoption of the ICC Statute can be prosecuted
retrospectively, provided they had qualified as crimes under customary interna-
tional law at the time of their commission. This law also provides that genocide,
crimes against humanity and war crimes are deemed to have reflected customary
law by the time the Statute was adopted. The Act further provides “for greater cer-
tainty” that crimes against humanity had already constituted a criminal conduct
under customary international law or general principles of law recognized by civi-
lized nations arguably “even prior” to the Nuremberg and the Tokyo Charters of
206 IMT Judgment, p. 445. Cf. Cassese 2013, pp. 25–26.

207 See Worster 2011, p. 974.
1945 and 1946, respectively.208 Basing on this legislation, on 22 May 2009, the
Superior Court of Quebec convicted Mr. Desire Munyaneza for genocide, war
crimes and crimes against humanity committed in Rwanda in 1994.209
Similarly, although the ICC Statute was domesticated in New Zealand in 2000,
2 years after its adoption, the domesticating legislation provides that jurisdiction
for genocide and crimes against humanity commences retroactively on 28 March
1979 and 1 January 1991, respectively. These are the respective dates on which
New Zealand acceded to the 1948 Genocide Convention, and when the jurisdiction
of the ICTY for crimes against humanity commenced.210
Therefore, if Kenya was to amend and give a retrospective effect to its
International Crimes Act of 2008, it would not be setting a new precedent in the
common law world. Kenya would not breach the principle of legality or the princi-
ple of individual guilt.
4.3.2.2.5 Interim Conclusion
Given that international criminal justice is becoming increasingly important, there

should not be room for international or domestic jurisdictions to use technicalities
to defeat its purpose, especially in places such as Africa where such atrocities are
on the increase. Allowing that to happen would be tantamount to using the law to
defeat (instead of promoting) the ends of justice. Thus, domestic jurisdictions
must always ensure that their application and interpretation of the principle of
legality seeks to promote substantive justice for serious forms of criminality.211
Since the principle of legality does not prohibit retrospective confirmation of juris-
diction on courts, the Kenyan International Crimes Act of 2008 could be amended
if at all the alleged crimes against humanity must be prosecuted under that label.
However, such amendment would be possible only if there was a political will to
genuinely fight impunity with respect to the post-election violence, especially with
regard to the main perpetrators.
208 See Canadian Crimes against Humanity and War Crimes Act of 2000, ss. 4(4), 6(4) and (5),
and s. 7. See also Cryer et al. 2007, p. 66.

209 See R. v. Desire Munyaneza [2009] QCCS 2201. For more details on this trial, see
Lafontaine 2010, pp. 269 et seq. It can be noted that also in 1987 Canada amended its Criminal
Code retrospectively to provide for the crimes of genocide, war crimes and crimes against
humanity. On the basis of this amendment, crimes committed during the Second World War (so-
called “Canadian holocaust”) were prosecuted and some convictions were achieved. See Braham
1995, p. 293 et seq.; Matas 1990, pp. 347 et seq.; Namwase 2011, p. 29.
210 International Crimes and International Criminal Court Act, 2000 (New Zealand), s. 8(4);
Cryer et al. 2007, p. 66.

211 Cf. Cassese 2013, pp. 24–25.
4.4 Issues Relating to Exercise of State Prosecutorial Function 129
4.4 Issues Relating to Exercise of State Prosecutorial

Function
Having analysed Kenya’s substantive criminal law and the options it offers for the
domestic prosecutions of the alleged crimes against humanity, it is suggested to
also highlight issues relating to the exercise Prosecutorial function in Kenya. Such
analysis is relevant for one main reason: It is not correct to assume (as most schol-
ars do) that mere availability of adequate substantive criminal law and the exist-
ence of a competent judiciary are enough factors to guarantee that the fight against
impunity for crimes under international law can be realized by all domestic juris-
dictions. The fact of the matter is that these are just two of three equally important
pillars to fight impunity for such crimes at the national level. The third pillar is the
national prosecutorial authority.212 In particular, three aspects of such an authority
can be used to fight or perpetuate impunity. These are (i) its level of independence;
(ii) the amount of discretionary powers it is vested with, and more importantly (iii)
the manner in which such discretion is exercised.
This section outlines and comments on the foregoing three aspects in relation
to the legal framework governing the prosecutorial function in Kenya. It takes into
cognizance the fact that the litigation tradition in Kenya adheres to the common
law adversarial system. Pursuant to this tradition, in any proceedings, including
those in respect of a criminal trial, the judge, unlike the judge in the Romano-
Germanic legal tradition, sits purely as an arbiter: he or she does not play any
active role with regard to filing of charges; defining the scope of such charges;
identifying the suspect to charge; or even deciding what evidence must be pre-
sented to court. These roles are exclusively left within the mandate of the prosecu-
torial office. Thus, the pivotal role of this office in the fight against impunity for
the crimes related to the post-election violence cannot be over-emphasized.
4.4.1 Position Under the 1963 Constitution
Under the Constitution of Kenya of 1963, the state prosecutorial function was
vested in the Attorney-General (AG),213 who was not only a political appointee of
the President,214 but also an overall adviser of the government in all matters per-
taining to law. Apart from this advisory role, the office of the AG was also respon-
sible for handling all criminal cases and only those civil matters to which the
212 Cf. Opening speech by Amos Wako, Attorney-General of Kenya, at “the ICC and
Complementarity Workshop“ held 3–4 December 2010 in Nairobi, p. 13 http://www.
africalegalaid.com/news/proceedings-of-icc-complementarity-workshop-in-kenya. Accessed August
2014.
214 Ibid., Article 109.
government was a party. The DPP was subordinated to, and received instructions
from, the AG as regards the handling of criminal cases. Thus, the AG had absolute,
discretionary and broadly defined powers. Accordingly, if the AG considered it
desirable, he had the absolute discretion to: (i) select a case to institute i.e., to
decide who the defendant should be and the offence with which to charge him or
her; (ii) to take over (i.e. “snatch”) and continue any case that had been instituted
by a private prosecutor; and (iii) discontinue any case at any stage before judg-
ment, including one which was being privately prosecuted.215
4.4.2 Current Position
The Constitution of Kenya of 2010 stripped the AG of the state prosecuto-

rial powers and entrusted them exclusively to the DPP. More importantly, the
new Constitution severed the link between the offices of the AG and that of the
DPP, such that the DPP’s office is now an independently established constitu-
tional office under Article 157(1) of the Constitution. Thus, currently, the office
of the DPP is statutorily more autonomous than previously. In addition, the new
Constitution contains important provisions which prima facie are aimed at enhanc-
ing the independence of the office of the DPP though minimization of political
control. This manifests itself in the DPP’s appointment procedure, execution of
duties and security of tenure.
4.4.2.1 Independence of the DPP
The DPP is appointed by the President from a list of persons approved by the
National Assembly, and who have the qualifications of a High Court Judge. DPP’s
tenure of office is limited to only one eight-year term with no eligibility for re-
appointment.216 Unlike previously where the DPP would require the consent of the
Attorney-General to indict a person, the current Constitution clearly stipulates that
the DPP “shall not require the consent of any person or authority for the commence-
ment of criminal proceedings and in the exercise of his or her powers or functions,
shall not be under the direction or control of any person or authority”.217
To enhance independence, DPP’s security of tenure is safeguarded under Article
158 of the Constitution, which removes the possibility of arbitrary termination of his
215 Ibid., Article 26(3).

216 Constitution of Kenya of 2010, Articles 157(2), (3) and (5). Note that under the old
Constitution, the AG had neither a term limit nor a security of tenure. Apparently, he could
remain in office for as long as he did not interfere with the political interests of the incumbent
president or his cronies. E.g., the former Attorney-General, Amos Wako, who controlled state’s
the prosecutorial authority, stayed in office for 20 years. In this period, he allegedly covered
“many scandals” involving politicians. See Capital News, 28 August 2011.
217 See Constitution of Kenya of 2010, Article 157(10).
or her appointment. Unless he or she resigns, the DPP’s appointment can be termi-
nated only on five grounds: mental or physical incapacity leading to failure to per-
form his or her duties; non-compliance with the tenets of leadership and integrity
under the Constitution; bankruptcy; incompetence; or gross misconduct.218 Even in
the event that a matter of removal from office arises, the President cannot remove
the DPP arbitrarily; he can only remove him or her upon a recommendation of a tri-
bunal which has looked into the matter.219
Thus, under the current constitutional order, the DPP is an independent consti-
tutional office. Given that the first DPP under the new Constitution has only be in
office for virtually 1 year, it is too early to make a determination whether practi-
cally this independence exists and is being exercised. However, this does not pre-
clude critical observations in relation to the wide range of discretionary powers
that the DPP enjoys.
4.4.2.2 Forms of Prosecutorial Discretion
The DPP is empowered to execute three functions. Stated more precisely, there are
three forms of prosecutorial discretion which the DPP can exercise legally. These
are (i) selection of cases and charges; (ii) interference with private prosecution;
and (iii) withdrawal of cases.220
4.4.2.2.1 Selection of Cases and Charges
The DPP has the liberty to choose whom to prosecute and with what type of a
crime or count to charge. This discretion presupposes two possibilities. One possi-
bility is that the selection of cases may be, as it should rightly be, made on objec-
tive grounds. In this regard, selection of who to prosecute for the crimes related to
the post-election violence would be informed mainly by the evidence obtained
from the domestic investigations. The assumption here is that the DPP’s selection

219 Ibid., Article 158(2) to (5).
220 Ibid., Article 157(6) provides: The Director of Public Prosecutions shall exercise State pow-
ers of prosecution and may:

(a) institute and undertake criminal proceedings against any person before any court (other
than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a
court martial) that have been instituted or undertaken by another person or authority, with
the permission of the person or authority; and
(c) discontinue at any stage before judgment is delivered any criminal proceedings instituted
by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions
under paragraph (b).
of cases would be bona fide, geared toward achieving the general objectives of
criminal law, namely retribution, deterrence, fostering public interest, etc.221
However, there is also a possibility that the selection of cases by the DPP could
be informed by subjectivity. In a worst-case scenario, this may include mala fide,
such as achieving a show trial, victors’ justice, a witch hunt, shielding of the sus-
pect, etc. Similarly the DPP might decide to charge a less serious offence when the
evidence actually points to a more serious offence. Experience shows that, previ-
ously, the prosecutorial authority (AG through the DPP) would not institute cases
against certain people even where the investigations offered a “watertight case for
prosecution”.222 There are indications that this may also be the case with regard to
the crimes related to post-election violence.
The “danger” of selective prosecution is not unique to Kenya, and it cannot be
avoided completely. It is a common problem in any criminal justice system where
absolute prosecutorial discretion is practised. As such, it can affect both national
jurisdictions and international criminal tribunals, including the ICC. Some checks,
however weak they might seem, have been designed to mitigate its effect in
Kenya. One of such checks is private prosecutions.
4.4.2.2.2 Private Prosecution
Private prosecutions are regulated under section 88 of the Kenyan Criminal

Procedure Code.223 A private person, either personally or through an advocate, is
allowed to conduct private prosecution, provided a permission of a magistrate is
obtained. Conceivably, a private prosecution could be triggered when, after the
usual police or DPP investigations are done, the DPP, exercising his absolute dis-
cretion, decides not to institute proceedings. An individual in his personal capac-
ity, most likely as the victim of the crime, might wish to prosecute the case
privately, if for example: (i) the decision of the DPP not to institute proceedings
does not seem to be genuine; (ii) there is an indication that the DPP deliberately
abused his discretion with an intent to shield the suspect; or (iii) if it appears that
the DPP will not be able to prosecute expeditiously due to his overwhelming back-
log of cases, lack of requisite expertise, etc.
Therefore, as the High Court of Kenya has noted, private prosecutions can
serve as “a constitutional safeguard against capricions, corrupt or biased failure or
refusal of police forces and the office of the [DPP] to prosecute offenders against
221 See generally Ashworth 2006, pp. 15–17.

222 See a detailed discussion in Mbote and Akech 2011, pp. 138–140.
223 NB. At the time of writing, the provision had not yet been amended (adjusted) to reflect the
changes introduced by the new constitution. Thus, the Code still made reference to the Attorney-
General instead of the DPP as the chief Prosecutorial authority in Kenya. However, no substan-
tive implication would result by a mere change of terminology.
the criminal law”.224 However, the precedents emanating from the Kenyan old
constitutional order indicate that the permission to conduct a private prosecution
can be granted only if the court is satisfied that the state prosecutorial authority has
been informed and, apparently, has consented to it.225
4.4.2.2.3 Power to “Interfere” with Private Prosecution
Even though a private prosecution could be viewed as a check to the prosecutorial

discretion relating to selectivity of cases, Article 157(6)(b) of the Constitution
indicates that the DPP can still interfere with cases being privately prosecuted.
According to the provision, the DPP can take over a case originally instituted as a
private prosecution but only “with the permission of the person or authority”
which commenced the prosecution, thereby converting it to a public prosecution.
Again, the requirement for permission is a check on the DPP’s discretion. If it is
perceived that the DPP’s intention in “hijacking” the prosecution is only to frus-
trate the proceedings and shield the accused, it is unlikely that the authorized pri-
vate prosecutor will agree to relinquish the prosecution of the case. Although not
clearly stated, it appears that if the two continue “competing” for the same case,
the court has the final say as to who should be entitled to proceed with prosecuting
the case. When compared to the position in the repealed constitution of 1963, this
position is a breakthrough of its own kind.226
However, although it may appear that a private prosecution could provide a cer-
tain solution to DPP’s failure to act with regard to cases related to the post-election
violence, it is nevertheless not an easy or a reliable option. Given that a private
prosecutor does not have the police at his or her disposal, serious challenges relat-
ing to investigations, search and seizure, etc., are bound to arise.227 Thus, it is not
conceivable that private prosecutions can be a panacea for impunity as regards the
crimes committed during the post-election violence.
4.4.2.2.4 Discretion to Withdraw Cases: Nolle Prosequi
Article 157(6)(c) of the Constitution gives the DPP the powers to “discontinue”
any criminal proceedings which he or she has instituted or taken over. The DPP
can do so “at any stage before judgment is delivered”. This aspect is further
224 See Mwalili 1998, p. 226 (citing as an example the High Court of Kenya ruling in Richard
Kimani & S. M. Maina v. Nathan Kahara of 1983).

225 Ibid.
226 Under the 1963 Constitution (Article 26), the DPP was not supposed to seek consent of the
private prosecutor before he took over.

227 On the contrary, for a public prosecution, the DPP has the mandate to order the Directorate
of Criminal Investigations (the police) to investigate any information or allegation of any crimi-
nal conduct. See Constitution of Kenya of 2010, Article 157(4).
regulated by section 82(1) of the Kenyan Criminal Procedure Code, and is referred

to as nolle prosequi, which simply means the discretion or powers of the DPP to
withdraw an already instituted criminal case at will. If nolle prosequi is entered
after the closure of the prosecution’s case, the consequence is that the accused per-
son must be acquitted.228 However, if it is entered before the prosecution’s case is
closed, nolle prosequi is not a bar to subsequent re-arrest or prosecution.
If not subjected to a check, the DPP’s nolle prosequi powers could be abused.
In fact, Musila reveals that this discretion was often abused in Kenya in the past,
as it was in various occasions used as a tool for “political witch-hunt” and, “in
some cases, to settle personal scores”.229 It is also possible that the DPP could
abuse his discretion in this respect by purporting to be genuinely asking to take
over proceedings instituted by a private prosecutor only to terminate them subse-
quently by entering nolle prosequi.
However, Article 157(11) of the 2010 Constitution introduces the much needed
check on this discretion by subjecting it to a judicial review. First, the DPP must
adhere to the general obligation imposed by the Constitution in that before with-
drawing the proceedings, he or she must “have regard to the public interest, the
interests of the administration of justice and the need to prevent and avoid abuse of
the legal process”.230 Secondly, before entering nolle prosequi, the DPP must also
obtain the permission of the court.231 The High Court of Kenya has made it clear
that for the courts to grant such permission, the DPP will be obligated to furnish
acceptable reasons for the decision to enter nolle prosequi.232
4.4.3 Interim Conclusion
The critical role of Kenya’s DPP in realizing the fight against impunity for the
crimes related to the post-election violence must not be underrated. Although the
DPP’s independence is constitutionally guaranteed, such independence has not so
far been exercised robustly to show any tangible progress with regard to investiga-
tion and prosecution of especially those who allegedly bear greatest responsibility
for the crimes. This has been associated with a lack of institutional and political
will to do so; and also with the fact that although significant reforms have been
done with respect to the judiciary (see infra Sect. 5.3), the prosecutorial authority
itself was not completely reformed.233

229 Musila 2007, p. 31. Also see Mbote and Akech 2011, p. 137.
232 Republic v. Enock Wekesa & Another [2010] eKLR.
233 See Kenyans for Peace with Truth and Justice and Kenya Human Rights Commission 2013,
pp. 26–27.
It has been suggested, and rightly so, that perhaps the best solution could be a
creation of a Special Prosecution Office which will be independent of the DPP
specifically to investigate and prosecute the cases related to the post-election vio-
lence in the Kenyan national courts.234 Although on the face of it this is an attrac-
tive idea, just like the idea about the creation of a special tribunal for Kenya, it is
unlikely to materialize, as it will obviously not get the prerequisite political sup-
port from the Kenyan Parliament that must enact a specific law in that regard.
4.5 Chapter Summary
This chapter has discussed two options for the effective domestic prosecution of
the crimes against humanity linked to the post-election violence, namely prosecut-
ing as ordinary domestic crimes or as international crimes per se.
As regard the first option, it has been argued that the alleged crimes against
humanity committed in Kenya can be punished effectively even when they are
charged as ordinary crimes under the Kenyan Penal Code. In this regard, it has
been suggested that the ordinary-crime approach remains the best option for Kenya
due to the practical advantages it offers for the domestic prosecutors. It has further
been shown that indeed Kenya has de facto chosen to rely on this option. However,
the main flaw is that Kenya has not used this option satisfactorily, because the
investigations and prosecutions carried out so far have not covered most of those
who are alleged to be most responsible for the post-election violence.
As regards the second option, it has been argued that Kenya’s International
Crimes Act of 2008 could be relied on only if it was first amended. As this leg-
islation was enacted after the commission of the crimes, it would, as a matter of
necessity, require the law maker to first give it an express retrospective application
in order for the domestic courts to apply it on the crimes in question, and most
importantly, in order for it to confer retrospective jurisdiction on the domestic
courts. It has been shown that this per se would not violate the principle of legal-
ity. However, it has been cautioned that since the alleged crimes were committed
prior to the enactment of this particular legislation, only the conduct or individual
acts which had undoubtedly acquired a jus cogens character would be prosecut-
able under the Act. But, as it stands now, the prospects of the Kenyan Parliament
to amend the legislation specifically for purposes of prosecuting the post-election
violence remain very slim, because most of the alleged architects of the violence
are politicians or their allies who are currently members of Parliament or Senate.
234 Ibid., p. 28.

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Chapter 5
Alternatives and Adjuncts to Domestic
Prosecutions
Abstract When a country decides to address past human rights violations committed
on its territory, it has two options to pursue, namely retributive justice (prosecution)
and restorative justice (non-prosecution) mechanisms. However, within the context of
so-called “peace versus justice debate”, it is settled that whenever both mechanisms
are pursued in a given transition, it is important to ensure that both peace and justice
are achieved. This chapter focuses mainly on the Kenyan truth commission as one of
the restorative justice mechanisms pursued as an integral part of the agreed domestic
road map for accountability for the atrocities linked to the post-election violence. The
chapter concentrates only on the aspects of the truth commission that have a bear-
ing on criminal accountability for the crimes against humanity allegedly committed
during the violence. It reveals that in view of the structure of the commission’s legal
framework, there are both strong and grey areas with the potential of affecting crimi-
nal accountability positively or negatively.
Contents
5.2 Transitional Justice in Kenya Through a Truth Commission............................................... 143
5.2.1 Prelude to Truth Commissions.................................................................................... 143
and Reconciliation Commission................................................................................. 144
5.2.3 Analysis of TJRC’s Mandates Vis-a-Vis Criminal Accountability
for the Post-Election Violence.................................................................................... 150
5.3 Vetting of Judges and Magistrates....................................................................................... 168
5.4 Chapter Summary................................................................................................................ 170
References................................................................................................................................... 171

142 5 Alternatives and Adjuncts to Domestic Prosecutions
The recent past demonstrates amply that various states implementing transitional
justice1 schemes have successfully employed non-prosecutorial mechanisms as
alternatives, adjuncts or supplements to prosecution. So far the non-prosecutorial
approach to transitional justice has involved a diverse range of options, such as truth
commissions, reparations, lustrations, granting of amnesties and traditional dispute
settlement mechanisms.2 The decision as to which mechanisms should be utilized
always depends entirely on the unique circumstances of the transition itself.
There are three main lessons that can be learned from the past experience of
transitional justice arrangements. First, the prosecutorial and the non-prosecutorial
mechanisms are not mutually exclusive: they can be pursued simultaneously as
complements.3 Second, whereas the main objective of prosecution is to achieve
retributive justice i.e. punishment of the perpetrators, the main objective of the
non-prosecutorial mechanisms is to achieve restorative justice i.e. reconciliation,
restitution, compensation, institutional reforms and restoration of rule of law.4
Third, a proper combination of retributive and restorative justice mechanisms in
one transition may lead to better results. For example, a recent study has con-
cluded that more satisfaction is likely to be achieved when a truth commission is
used alongside prosecution and amnesty, provided that such a combination strikes
a “justice balance”. According to the study, a justice balance is achieved when: (i)
the prosecution component is included to underscore zero tolerance for impunity
for gross violations of human rights; (ii) the amnesty component, especially in
cases of negotiated transitions, is included to enhance political stability; and (iii)
the truth-finding component is included to lay bare the past systematic abuses in
order to, inter alia, prevent future recurrence.5
In the light of foregoing, it was agreed domestically in Kenya that both prosecu-
torial and non-prosecutorial mechanisms should be pursued to respond to, inter alia,
the atrocities committed during the post-election violence.6 In particular, legal
frameworks for four non-prosecutorial mechanisms, namely a truth commission,
1 The phrase “Transitional justice” (also “post-conflict justice” or “justice in transition”) refers
to a set of different mechanisms adopted in the aftermath of a period of conflict, civil strife,
repressive regime, etc., that are aimed at dealing with the human rights violations committed dur-
ing such period. See Roht-Arriaza 2006, p. 2; UN Security Council 2004, para 8. For other com-
prehensive literature on the subject of transitional justice, see Ambos et al. 2009; Hayner 1994,
p. 600; Kritz 1995a; McAdams 1997; Teitel 2000.
2 See Robertson 2006, p. 283; Kritz 1995b, pp. xix et seq.; Steiner and Alston 2000, p. 1217;
Werle 2009, pp. 74–78.

3 Amnesty International 2007; Bisset 2012, pp. 1–2; Ratner et al. 2009, p. 167; Villa-Vicencio
1999–2000, pp. 165 et seq., 2000, pp. 205 et seq.; United Nations Security Council 2004, p. 9.
4 Bisset 2012, pp. 11–12 and 25–26; Collins 2010, pp. 12–14.
5 Olsen et al. 2010, pp. 457–476. See also Bisset 2012, pp. 40–42.
6 See generally Stahn and Nedelsky 2013, pp. 261–266.
amnesties, reparations and lustration (vetting of judges and magistrates), were

adopted. Whereas amnesties and reparations were pegged to the legal framework
for the truth commission, a separate legal framework was adopted for the vetting of
judges and magistrates.7
This chapter deals mainly with the truth commission as the main response to
the post-election violence pertaining to restorative justice. The framework for the
vetting of judges and magistrates is outlined briefly only for purposes of com-
pleteness. In order not to drift away from the main theme of this book, which is
criminal accountability for the violence, the chapter focuses more narrowly on
the aspects of the truth commission with a direct or indirect bearing on criminal
accountability for the crimes related to the violence. However, in order to put the
discussion in context, the chapter will start off with a brief outline of the back-
ground, objectives and main features of the Kenyan truth commission and of the
proposed amnesty.
5.2 Transitional Justice in Kenya Through a Truth

Commission
5.2.1 Prelude to Truth Commissions
Truth commissions are fact-finding bodies established to investigate past mass

atrocities. Their main objective is to clarify and acknowledge the truth about past
occurrence of injustice; and document the same, thereby preserving its memory
for future generations.8 They also seek to bring about a break with the past human
rights violations and promote reconciliation between the perpetrators and the vic-
tims, in order to create a sustainable environment for future peace, democracy and
political stability.9 They have three specific features: First, they investigate past
human rights abuses over a given period. As a result, they are usually not event-
specific. Second, they are temporary in nature: they exist only for a pre-deter-
mined period of time after which they are dissolved, usually having compiled a
report about their findings. Third, they operate strictly according to given man-
dates that are usually defined by their establishing authorities.10
7 See Vetting Act of 2011.

8 Werle 2009, p. 75.
9 Hayner 1994, p. 604.
10 Hayner 1994, p. 604, 2011; Freeman 2006, pp. 12–18. See also Cassese et al. 2009, pp. 543–553;
Grandin and Klubock 2007. On classification, advantages and disadvantages of the various types of
truth commissions see Buergenthal 2006, pp. 105–108.

and Reconciliation Commission
5.2.2.1 Origins
The idea of creating a truth commission in Kenya emerged for the first time after
the historic 2002 general elections which saw the Rainbow Coalition ousting the
long-ruling dictatorial party (see supra Sect. 2.4.2.2). On 17 April 2003, the
Rainbow government appointed the Task Force on the Establishment of the Truth,
Justice and Reconciliation Commission (hereafter “Task Force”) and directed it to
seek opinions of the citizens on whether a truth commission was needed in Kenya
in order to inquire into human rights violations committed under the previous gov-
ernments.11 The Task Force found that indeed over 90 % of Kenyans were in
favour of the creation of a truth commission for that purpose.12
However, as the new government consolidated power, the enthusiasm about the
truth commission faded drastically. Apparently, this was due to the fact that most
of the politicians in the new government, including President Mwai Kibaki him-
self, had served in the previous dictatorial regimes. Thus, politically speaking, the
“new regime” was made of “recycled” politicians: the same people in a new gov-
ernment. The fear seems to have been that any investigations of the past atrocities
and injustices by the truth commission could become a miscalculation, as it would,
most probably, end up linking those serving in the new regime or their close allies
to the very atrocities. Consequently, the report of the Task Force on truth com-
mission was archived just like the reports of previous similar bodies (see supra
Sect. 2.5.3), thereby putting the desire of the Kenyans to have a truth commission
in abeyance.
It took five more years for the creation of the truth commission to materialize,
thanks to the 2007–2008 post-election violence. This time the idea was resusci-
tated by the AU-brokered mediation process (see supra Sect. 3.3), being part of the
broad objectives of agendas two and three in the mediation process. These agendas
sought to seek ways to address issues relating to promotion of the reconciliation,
healing and restoration, and also how to look for lasting solutions for the long-
term grievances and other pertinent issues that had until then not been resolved in
Kenya. On 4 March 2008, the parties to the mediation process agreed on the
immediate establishment of a truth commission for these purposes.13
Consequently, the commission was established pursuant to the Kenyan Truth,
Justice and Reconciliation Commission Act of 2008 (hereafter “TJRC Act”).14
11 See Kenya G.N No. 2701 of 17 April, 2003.

12 See Republic of Kenya 2003. For greater detail see Ndung’u 2009, pp. 29–48.
13 Kenya National Dialogue and Reconciliation 2008.
14 See s. 3.
5.2 Transitional Justice in Kenya Through a Truth Commission 145
5.2.2.2 Objectives
In its Preamble, the TJRC Act started by acknowledging that gross violations of
human rights, abuse of power and public office had happened in Kenya since inde-
pendence in 1963. It stated that the climax of such violations was the post-election
violence of 2007–2008.15 The Parliament therefore resolved to establish the
Kenyan TJRC as a “free reconciliatory forum”—a “platform for non-retributive
truth telling” where the victims’ voice would be heard and their dignity restored,
and where the perpetrators’ actions would be confessed.16 To achieve this broad
objective, the TJRC Act required the commission to conduct public hearings in all
cases except in three circumstances, namely: (i) where a public hearing would be
against the interests of justice; (ii) where the hearing would endanger the security
of perpetrators, victims and witnesses; or (iii) where, as a result of public proceed-
ings, “harm” could occur to “any person”.17
5.2.2.3 Composition and Independence
The TJRC was a mixed commission composed of nine members, six Kenyans and
three non-Kenyans, who were appointed on 22 July 2009.18 While the Kenyan
members were appointed by the President after undergoing a domestic vetting pro-
cess, the international commissioners were appointed after being nominated by the
African Panel of Eminent Personalities.19
The TJRC’s independence was guaranteed under section 21 of its legislation,
which provided that the commission would “not be subject to control or direction of
any person or authority”.20 The Act further required that in performing their duties,
the TJRC’s commissioners and members of staff had to do so “in their individual
capacity, independent of political parties, the government, or other organizational
interests, and that they must avoid taking action which could give an impression of
partiality or otherwise harm the credibility or integrity of the Commission”.21
15 TJRC Act, Preamble paras 2 and 5.

16 Ibid., Preamble para 4; s. 5(h) and (i).
17 Ibid., s. 25(a).
18 The six Kenyan commissioners were: Ambassador Bethuel Kiplagat (Chairperson), Tecla
Namachanja Wanjala (Vice Chairperson), Major General Ahmed Sheikh Farah, Margaret Shava,
and Professor Tom Ojienda. The international commissioners were: Professor Ronald Slye
(USA), Judge Gertrude Chawatama (Zambian) and Berhanu Dinka (Ethiopian). See Kenya
Gazette Notice No. 8737, Special Issue, Vol. CXI-No. 70 of 14 August 2009 http://www.law.
co.ke/KenyaGazette/view_gazette.php?title=3224. Accessed September 2014.
19 TJRC Act, s. 10, read together with the first Schedule to the Act.
20 Ibid., s. 21(1).
21 Ibid., s. 21(2).
5.2.2.4 Mandates
5.2.2.4.1 Temporal Mandate
The temporal mandate of the TJRC was defined very broadly, in order to enable it
establish as “accurate and complete” historical record of all the violations as possi-
ble.22 This mandate covered a time frame of 45 years, extending from 12
December 1963, the date on which Kenya obtained independence, to 28 February
2008, the date on which the agreement bringing the post-election violence to an
end was signed.23 But, by virtue of section 5(a) of the TJRC Act, the commission
was allowed to even go beyond the 45 years by investigating the “historical ante-
cedents” of the violations where necessary. In this regard, the TJRC later indicated
that indeed it had to investigate the pre-independence colonial period in order to
understand the context of the post-independence injustices, specifically those
related to land.24
5.2.2.4.2 Subject-Matter Mandate
The subject-matter mandate of the commission covered two categories of crimes.

The first category was broadly described as “gross human rights violations and
violations of international human rights law”.25 This formulation meant that any
act or omission that could constitute a violation of “a fundamental human right”
fell within this category, and this included crimes against humanity and genocide.
Other specific violations of human rights which were expressly included under
this category were: (i) torture; killing; abduction; severe ill-treatment; (ii) impris-
onment or deprivation of physical liberty; (iii) rape and other forms of sexual vio-
lence; (iv) enforced disappearances of persons; (v) persecution against an
identifiable group or collectivity on political, racial, national, ethnic, cultural, gen-
der or other ground; and (vi) expropriation of private property.26
The second category of crimes which the TJRC was mandated to investigate
was that of “economic crimes”. This included “economic rights violations”, such
as grand corruption, exploitation of natural or public resources and “irregular” or
illegal acquisition of public land.27
For both categories of crimes—economic crimes and gross violations of human
rights—the TJRC was tasked with looking into, inter alia, the context, causes and
circumstances under which the crimes occurred, and to identify the individuals,
22 Cf. Ibid., s. 5(a).

23 Ibid., ss. 6(a) and 5(a).
24 See Kenya Truth, Justice and Reconciliation Commission 2011a, p. 44.
25 TJRC Act, ss. 5(a), (c) and 6(a).
26 Ibid., s. 2, read together with s. 6(a–e), (h) and (r).
27 Ibid., s. 6(f), (g), (n) and (o).
institutions, state and non-state actors responsible for such violations, and the vic-
tims.28 Thus, impliedly, the commission could include in its final report the names of
persons allegedly responsible for the atrocities and violations it had investigated.
The inclusion of economic crimes in the subject-matter mandate of the TJRC
goes beyond the traditional focus of investigations of the “first generation” of truth
commissions which concentrated on the violations relating to political and civil
rights. Recently, there has been a rising trend that seeks to respond to the increas-
ing need for truth commissions to suit the local contexts of the transition in ques-
tion. The mandate of the Kenyan TJRC on economic crimes is reflective of this
trend, and is welcome. It takes cognisance of the fact that in this particular transi-
tion, there was a nexus between the violations of political and civil rights on the
one hand and socio-economic rights on the other hand. The Liberian and
Indonesian truth commissions, too, had a similar mandate, which included, for
example, looking into corruption.29
However, it is beyond the scope of this book to discuss the mandate of the
TJRC with regard to economic crimes. Rather, the focus is limited to the category
“gross violations of human rights”, and more narrowly to only the atrocities linked
to the 2007–2008 post-election violence.
5.2.2.5 Final Report and Credibility Issues
5.2.2.5.1 Final Report
The TJRC legislation required the TJRC to prepare and submit a final report to the
President.30 It also required the commission to include in the report findings and
recommendations on, among other things, prosecution of individuals implicated in
the violations investigated, and a proposal on the mechanism and framework for
the implementation of all its recommendations.31 In addition, the law further
required that the commission must publish its report immediately after submitting
it to the President, and that the report must be tabled in Parliament within 21 days
following such publication.32 The report of the commission was handed over to
the President on 21 May 2013, and was officially published on the same date.33
Furthermore, according to the TJRC Act the implementation of the TJRC report
was supposed to commence within 6 months upon its publication. To this end, the
Minister of Justice was put under an obligation not only to operationalize an
“implementation mechanism”, but also to submit bi-annual reports to the National
28 Ibid., s. 6(b).

29 Valji 2009.
30 TJRC Act, s. 48(1).
31 Ibid., s. 48(2)(b)–(f).
32 Ibid., s. 48(3) and (4).
33 See Kenya Truth, Justice and Reconciliation Commission Report 2013 (Vols. I–IV).
Assembly concerning the implementation of the recommendations of the commis-

sion. If any of such recommendations was not implemented, the Minister was
required furnish reasons for non-implementation.34 In addition, section 49(2) of
the TJRC Act provided for the creation of an “implementation committee” to, inter
alia, evaluate the “efforts” of the Government to implement TJRC’s recommenda-
tions and submit quarterly reports “to the public” about its evaluation.
By June 2014, 1 year after the publication of the TJRC’s report, there was no
talk in Parliament or any commitment from the Kenyan government regarding the
implementation of the report. Among the citizens, there was no optimism that the
report would ever be implemented fully. In fact, there were indicators already that
any attempt to implement the report fully would be faced with enormous political
and legal obstacles, as the political elite were already unhappy about the commis-
sion’s findings.
At this juncture, a few issues pertaining to the credibility of the commission
and its report are also worth highlighting before moving to the critical aspects of
the commission that have a bearing on the criminal accountability for the post-
election violence.
5.2.2.5.2 False Start and Credibility Question
The TJRC was inaugurated in July 2009, and was given 2 years within which to
finalize its operations, with a possibility of a six-month extension by Parliament.
This is besides a three-month period given to the commission after its inauguration
to prepare itself for the commencement of operations.35 Therefore, going by the
strict timelines specified above, the TJRC was supposed to commence its opera-
tions officially by November 2009, and if one includes an extension of 6 months,
the operations of the commission ought to have been finalized not later than May
2011. However, these strict timelines were not met. The main reason for the delay
was a long controversy which arose with respect to the TJRC’s chairperson,
Ambassador Bethuel Kiplagat. Several revelations that emerged subsequent to his
appointment put to question his personal credibility and suitability to serve in the
commission.36 The controversy started when Kiplagat was implicated in three
areas of atrocities that fell within the mandate of the TJRC. These were the assas-
sination of Kenya’s former minister of foreign affairs, Robert Ouko, in 1990; a
notorious massacre (Wagalla massacre) of 1984; and a corruption scandal related
to land transactions occurring in 1988.37
34 TJRC Act, ss. 49 and 50.

35 Ibid., s. 20(1)–(4).
36 Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. I, Chap. 4, paras 4–85.
37 Ibid., paras 5–9; Kenya Truth, Justice and Reconciliation Commission 2010, pp. 2–5; Slye
2012–2013.
While Kiplagat strongly denied any wrongdoing38 and refused to resign volun-
tarily, the rest of the TJRC commissioners refused to work under his chairmanship
unless he was first “cleared”. They feared, reasonably so, that doubts about the
credibility of their chairperson would reverberate as questionable credibility of the
commission itself, including its final report. Thus, the TJRC commissioners
(excluding Kiplagat) jointly petitioned the Chief Justice of Kenya, requesting him
to appoint a tribunal pursuant to section 17 of the TJRC Act, which laid down the
grounds for removal of a TJRC’s commissioner from office, “to inquire into the
question of the removal of the TJRC’s Chairperson” on grounds of “misbehaviour
or misconduct”.39 Thenceforth, both legal and political “battles” ensued, entailing,
inter alia, a number of court cases.40 After long hesitation on the part of the Chief
Justice, the tribunal was finally formed in November 2010, and was directed to
inquire into claims that Kiplagat’s past conduct “erode[d] and compromise[d] his
legitimacy and credibility” to chair the TJRC.41 Kiplagat reluctantly stepped aside
to allow these investigations to take place.42 However, the tribunal could not final-
ize its task due to yet more legal battles; no decision was rendered.43 Following a
judicial review application, the High Court of Kenya ruled eventually that even the
Chief Justice had no powers under section 17 of the TJRC Act to order an inquiry
into the said “past conduct” of Kiplagat. This ruling paved the way for Kiplagat to
return to the TJRC. Upon returning, Kiplagat indicated explicitly that he came
back to the commission “to shape the final report”.44 This left the substantially
crucial question of his suitability and credibility unanswered.
The above-mentioned wrangles led to the following outcomes: (i) The Vice
Chairperson of the TJRC Betty Murungi resigned from the Commission. Another
commissioner (American) threatened to resign because he had “lost faith” in the
ability of the TJRC “to fulfil even a small part of its mandate”45; (ii) the
Parliament issued an ultimatum threatening to disband the Commission if the
commissioners “did not resolve their differences”46; and (iii) the Commission lost
38 See Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. I, Chap. 4, paras
10–15.
39 See Kenya Truth, Justice and Reconciliation Commission 2010.
40 See Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. I, Chap. 4,
paras 16–60. See also Republic v Truth Justice & Reconciliation Commission & another Ex-
parte Augustine Njeru Kathangu & Nine others [2011] eKLR; Truth Justice and Reconciliation
Commission v Chief Justice of The Republic of Kenya and Bethwel Kiplagat [2012] eKLR, here-
after “TJRC v. C.J of Kenya & Bethwel Kiplagat”.
41 Daily Nation, 29 October 2010.
42 BBC News, 2 November 2010.
43 TJRC v C.J of Kenya & Bethwel Kiplagat [2012] eKLR, p. 3.
44 See Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. I, Chap. 4. para 47.
45 See Kenya Truth, Justice and Reconciliation Commission 2011a, p. 39; See also Christian
Science Monitor, 22 October 2010; Daily Nation, 29 October 2010.

46 Daily Nation, 28 October 2010.
1 year without operations.47 As a result, when its operations resumed, the TRC
had to request the Parliament for the extension of its life for 6 months to the end of
2011.48 However, further extension was granted, following the amendment of the
TJRC Act in 2012, to enable the Commission finalize its report.49
Despite the false start, the TJRC nevertheless embarked successfully on its opera-
tions. Against all odds, it was able to visit all the 47 counties in Kenya and
received testimonies of about 40,000 people.50 In order to enhance the credibility
of its final report, the Commission ensured that the controversy about its chairper-
son was documented in a very detailed manner in the final report. Then the
Commission provided the assurance that Kiplagat had been strictly denied any
influence or opportunity in the drafting of the parts of the report dealing with the
violations to which he had been implicated.51
5.2.3 Analysis of TJRC’s Mandates Vis-a-Vis Criminal

Accountability for the Post-Election Violence
When a truth commission and prosecution operate simultaneously or successively

as accountability mechanisms responding to the same atrocities, a regulation of
their relationship is very crucial; the reason being that an overlap between the
investigations conducted pursuant to the two mechanisms is almost guaranteed.
Usually such an overlap gives rise to certain difficulties and challenges for which
only a careful and proper coordination can make the two mechanisms operate
smoothly, harmoniously and effectively.52 Schabas and Darcy rightly capture these
challenges as “the tension between criminal justice and the search for truth”.53
47 See Kenya Truth, Justice and Reconciliation Commission 2011a, p. 38; Kenya Truth, Justice
and Reconciliation Commission Report 2013, Vol. I, Chap. 4, paras 76–81.

48 See Kenya Truth, Justice and Reconciliation Commission 2011b.
49 See Statement by the Minister for Justice, National Cohesion and Constitutional Affairs on the
TJRC, 31 July 2012 http://www.tjrckenya.org/index.php?option=com_content&view=article&i

d=561:statement-by-the-minister-for-justice-national-cohesion-and-constitutional-affairs-on-the-
tjrc&catid=1:tjrc-news&Itemid=187. Accessed April 2013.
50 See Slye 2012–2013.
51 See Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. I, Chap 4, paras
72–75. See also Kenya Commission on Administrative Justice 2012, p. 9.

52 Cf. Bisset 2012, pp. 4–6, 45–73; Valji 2009.
53 Schabas and Darcy 2004; Lutz 2006, pp. 336–337.
Three institutions, namely the TJRC, national courts and the ICC have, at dif-
ferent levels and degrees, investigated or prosecuted the crimes related to the post-
election violence in Kenya. Considering their overlapping mandates, it is very
likely that two of or all the three institutions may have handled, are handling, or
will have to handle the same individuals or information. This overlap is inevitable
due to the fact that the investigations have most likely involved or will involve the
same perpetrators, victims, witnesses and, more importantly, same pieces of evi-
dence. This elicits the pertinent question whether in this situation the legal frame-
work adopted in Kenya provides for a proper coordination of this multifaceted
approach to justice. The incidental question is whether any challenges could arise
in the future in the absence of such coordination.
When the Kenyan TJRC legislation was still at a bill stage, Amnesty
International published a “constructive critique” of the bill in which four “prob-
lematic aspects” of its proposed legislation were identified. The critique raised the
concern that the relationship between the envisioned TJRC and the Kenyan
national courts was not clearly articulated in the bill, and that this had the potential
of affecting negatively the search for criminal accountability for the crimes to be
investigated by the commission, including those linked to the post-election vio-
lence.54 Similarly, the Multi-Sectoral Task Force on the Truth, Justice and
Reconciliation Process, an umbrella body of Kenyan civil society organisations,
identified several “manifest weaknesses” in the bill and proposed its amendment
before it became law.55 Concerns were raised with regard to four uncoordinated or
unclear aspects in the TJRC bill that had the potential of affecting criminal
accountability during or after the TJRC’s investigations. These aspects pertained
to: (i) the type and nature of the crimes that the TJRC and the national courts were
empowered to investigate; (ii) the mandate of the TJRC to recommend prosecution
in national courts; (iii) the mandate (or lack thereof) of the TJRC to grant amnesty;
and (iv) information sharing between the TJRC and the national courts and the
national investigative and prosecutorial authorities.
Despite the concerns raised by Amnesty International and other commentators,
some of the “problematic” aspects of the bill remained unchanged in the text of
the TJRC Act which was finally passed by Parliament. The following discussion
will make a critical analysis of these aspects, clearly indicating how they could
affect criminal accountability for the post-election violence.
5.2.3.1 Nature and Scope of Crimes in the TJRC Act
Of the four core crimes under international law, the TJRC was empowered to investi-
gate genocide and crimes against humanity as such. The TJRC legislation defined
these two crimes specifically for purposes of the TJRC’s investigations. In this regard,
54 Amnesty International 2008; Asaala 2010, pp. 397 and 398.
55 See Multi-Sectoral Task Force on the Truth, Justice and Reconciliation Process 2008.
both similarities and discrepancies can be noted between some aspects of the defini-
tions in the TJRC Act and the definitions of the same under the domestic laws of
Kenya and under international law. For example, like the ICC Statute, the definition
of crimes against humanity in the TJRC Act contained two parts: the individual acts
(material elements) and contextual elements. As regards the individual acts, the Act
included the same acts that one finds under Article 7(1) of the ICC Statute as also rep-
licated in section 4(2)(a) of Kenya’s International Crimes Act of 2008, except for the
crime of apartheid which was not provided for in the TJRC Act. As regards the con-
textual elements, the TJRC Act only required that for the individual acts to amount to
“crimes against humanity” they must have been committed as part of a “widespread
or systematic attack directed against a civilian population with the knowledge of the
attack”.56 The fact that the TJRC Act did not require the attack to have been commit-
ted “pursuant to or in furtherance of a State or organizational policy” means that, for
purposes of its investigations, the TJRC was required to apply the definition of crimes
against humanity under customary law, which definition is narrower than the defini-
tion found in the Kenya’s International Crimes Act of 2008 (see supra Sect. 4.3.2.2.2
and infra Sect. 6.4.2.2). Consequently, this gave rise to two potentially disharmonious
definitions of crimes against humanity in Kenya. Questions that arise are: How and
why did such discrepancy arise; and what implications might it have?
The afore-mentioned discrepancy is directly traceable to the mediation process
carried out pursuant to the post-election violence (see supra Sect. 3.3). As already
shown, three proposals emerged out of this process, namely: (i) the creation of a spe-
cial tribunal for Kenya; (ii) the fast-tracking of the domestication of the ICC Statute;
and (iii) the establishment of the TJRC. This is the reason why even the legislative
processes in respect of implementation of each of these three proposals commenced
immediately after the mediation talks, and proceeded concurrently. As a result, the
bill for the Special Tribunal for Kenya was drafted and given a retroactive effect
to specifically address the crimes committed during the post-election violence; the
International Crimes Act of 2008 was enacted and given prospective applicability to
cater for future eventualities of crimes; and the TJRC Act was enacted specifically to
provide for a framework for investigations pertaining to truth-seeking.
A closer look at the TJRC Act suggests that this legislation never intended to
provide a comprehensive legal framework on which the charges for the atrocities
investigated by the TJRC, including the crimes committed during the post-elec-
tion violence, would be based. This can be inferred from three features that can be
deduced from the Act. Firstly, although the TJRC Act gave the TJRC the powers
to recommend prosecutions (see infra Sect. 5.2.3.3), it did not specify whether or
not such prosecutions must be based on the Act itself. Secondly, although the Act
enumerated crimes which constituted “gross human rights violations”, it did not
define or impose any penalties, nor did it expressly confer criminal jurisdiction on
the Kenyan domestic courts in respect of those crimes. Thirdly, and more impor-
tantly, apart from “genocide”, “crimes against humanity” and “enforced disappear-
ance of persons”, the TJRC Act did not at all define the other specific criminal acts
56 TJRC Act, s. 2.

enumerated therein, such as torture, persecution, deportation, severe ill-treatment,

etc.; it only mentioned the crimes and stated that they constituted “gross violations
of human rights” for purposes of TJRC’s investigations.
Therefore, by not defining all the crimes exhaustively and by not defining pen-
alties or expressly establishing criminal jurisdiction for the domestic courts in the
TJRC Act, the Kenya Parliament envisioned an implicit arrangement whereby the
prosecution of the atrocities investigated by the TJRC would be done on the basis
of domestic legislation other than the TJRC Act. The thinking appears to have
been that the charges of those atrocities with a nexus to the 2007/2008 post-elec-
tion violence would be based on the Special Tribunal for Kenya Act and be pros-
ecuted by the envisioned Special Tribunal for Kenya (see supra Sect. 3.5), while
those atrocities without any link to this particular violence would be charged under
the Kenyan Penal Code and thereby be prosecuted in the Kenyan ordinary courts.
The foregoing can be the only logical and reasonable explanation as to why, for
instance, in terms of the definitions of the core crimes, the TJRC Act was made to be
more consistent with the proposed law for the Special Tribunal than with the
Kenya’s International Crimes Act of 2008. This is true with respect to the contextual
elements of crimes against humanity, according to which the drafters made sure that
the definition in the TJRC Act and that in the bill for the Special Tribunal for Kenya
were substantially the same, as they both adopted the customary law definition. In
addition, the same individual acts which were enumerated but not defined in the
TJRC Act were defined exhaustively in the proposed law for the Special Tribunal.57
Thus, even though it was not stated explicitly anywhere in these pieces of
legislation, one can still infer an implicit effort or a plan to create a relationship
between the proposed Special Tribunal for Kenya and the TJRC. Such a relation-
ship would have been symbiotic in nature. However, for this arrangement to have
succeeded, it was imperative that both institutions materialized. Unfortunately, as
already shown (see supra Sect. 3.6), the proposed Special Tribunal for Kenya was
blocked by Parliament for political reasons.
Therefore, the fact that the TJRC materialized while the Special Tribunal
did not materialize disturbed the implicit original plan for addressing criminal
accountability for the crimes in question in a more co-ordinated manner. This fact,
which has not received any attention so far, may give rise to several challenges in
future. One such challenge could arise in relation to prosecutions recommended
by the TJRC after having formed an opinion that certain conduct it investigated
amounts to “crimes against humanity” pursuant to the TJRC Act. It is now clear
that since the proposed Special Tribunal did not materialize, such prosecutions
will have to be conducted by the ordinary courts. In this regard, the following
three points are worth reiterating for domestic prosecutors to take note of specifi-
cally with regard to crimes against humanity.
First, already shown in the previous chapter, it may not be possible to bring the
charges on the basis of the definition in the International Crimes Act of 2008 unless the
Act is amended. Second, it is unlikely that the ordinary courts will allow charges to be
57 E.g. torture, deportation and persecution. See Special Tribunal for Kenya Bill of 2009, s. 2.
brought on the basis of customary international law in view of the reluctance of domes-
tic courts to rely directly on customary law. Third, the best solution in this situation is
to disregard and avoid the label “crimes against humanity” and charge the conduct as
“ordinary crimes” under the Kenyan Penal Code, thereby circumventing the intricacies
or challenges relating to retroactivity or the policy element in crimes against humanity.
This, as already shown, is the de facto approach so far taken in Kenya, even before the
creation of the TJRC, and is likely going to remain the most convenient approach for
the domestic prosecutors and the courts. A challenge that could arise in this respect is
that some conduct such as “enforced disappearances”, which has been investigated by
the TJRC, and which clearly constitutes gross violations of human rights under interna-
tional law, may fail to be captured in the available domestic ordinary crimes.58
However, this will not affect criminal accountability for the crimes related to the post-
election violence per se, as no enforced disappearances were reported.
As regards the crime of genocide, the definition in the TJRC Act was largely con-
sistent with the definitions in the Genocide Convention, the ICC Statute and Kenya’s
International Crimes Act of 2008. The only discrepancy in this regard is found under
section 2 of the TJRC Act which replaced the act (conduct) of “forcibly transferring
children of the group to another group” under Article 6(e) of the ICC Statute with
“forcibly transferring children of the group from one place to another” place. It is
not very clear why this replacement was considered important in relation to the
TJRC’s investigations. In addition, it is difficult to figure out how, in view of the
replacement, the mere physical transfer of children of a group “from one place to
another place” (within Kenya) would satisfy the dolus specialis requirement for the
crime of genocide, namely the specific intent to destroy a protected group in whole
or in part. Interestingly, the same ambiguity would have been found in the law for
the Special Tribunal for Kenya had its bill been passed into law.59 However, irre-
spective of the implication this provision has or may seem to have, and whatever the
purpose it was meant to serve, it may not be of much concern here, given the conclu-
sion (supra Sect. 3.4.3.1) that no genocide happened in Kenya
5.2.3.2 Powers to Recommend Amnesty
5.2.3.2.1 Procedure for Proposed Amnesty
The TJRC had the mandate to recommend the granting of amnesty to “any person”
for “any act or omission” it investigated,60 but it decided not to utilize this man-
date. However, this does not preclude an evaluation of the structure and scope of
58 It appears that the TJRC was given mandate over the act of ‘forced disappearances’ partly on
account of such incidents alleged to have occurred prior to the resumption of multipartysm, as
well as during operation Okoa Maisha linked to the violence in Mt. Elgon (see infra Sect. 6.3.3).
59 See the definition of genocide in the STK Bill, s. 2. On specific intent for genocide see
Bantekas 2010, p. 47.

60 TJRC Act, ss. 34(1) and (2), 36(6) and 39.
the amnesty proposed in the TJRC Act. In doing so, the justification for TJRC’s
decision not to utilize this specific mandate will be identified.
While the law was clear that the amnesty would have followed three procedural
steps, the authority that would have been responsible for ultimately granting the
amnesty cannot be clearly identified. The first step towards the amnesty would have
been an application made in a prescribed format.61 As a second step, upon receipt
of the application, the TJRC would have had two options, namely to accept or
reject the application forthwith; or to conduct “a hearing for amnesty” before decid-
ing on the application.62 The third step would have come into play if the applicant
qualified for amnesty. In this regard, the TJRC was required to make a recommen-
dation for amnesty to the Attorney-General, and thereby proceed to gazette the
names of the persons recommended for amnesty.63 In these three procedural steps,
the right to legal representation would have been availed to the applicants.64
5.2.3.2.2 The Unclear Role of the Attorney-General
As indicated above, the TJRC’s mandate was merely to recommend to the Attorney-
General (AG) the granting of amnesty to the applicants who qualified. This is a grey
area whose intention raises suspicion. In plain English, the power to recommend
amnesty is not the same as the power to grant amnesty. In this regard, the TJRC Act
was not clear about the role of the AG in the amnesty process—whether or not,
upon receipt of such a recommendation, the AG would have been the ultimate
authority to grant amnesty. The law was silent as to whether the AG had powers to
reject a TJRC’s recommendation for amnesty. Similarly, the Act remained silent as
to whether the TJRC’s publication (gazetting) per se of the names of the people rec-
ommended for amnesty would have amounted to the granting of amnesty.65
It was agreed during the mediation process that the TJRC’s recommendations
would be made to the President.66 This suggests, therefore, that the mediators envi-
sioned that the ultimate mandate to receive recommendations for amnesty and grant
the same would be vested in the President. But the TJRC Act did not provide so. It
cannot be argued or assumed that the mandate was subsumed in the presidential pre-
rogative power of mercy. The reason is that while the prerogative power of mercy
61 Ibid., s. 35. This includes a joint application in respect of the same act or omission. See s. 36(6).
62 Ibid., s. 36(1)–(5). In both scenarios i.e. where a hearing took place and where it did not, the
commission was supposed to notify the applicant if he or she qualified to be recommended for
amnesty or not. See s. 40.
63 Ibid., ss. 38 and 39.
64 Ibid., s. 28.
65 This grey area had been clearly identified even before the TJRC bill was passed into law, but
was not rectified. See Multi-Sectoral Task Force on the Truth, Justice and Reconciliation Process
2008, pp. 6–7.
66 Kenya National Dialogue and Reconciliation 2008, p. 2.
(pardon) only enables the beneficiary to have his sentence (not criminal liability)
expunged or reduced, amnesty absolves the beneficiary from criminal liability.67
Perhaps the AG was linked to the proposed amnesty process because of his
prosecutorial role under the existing Kenyan Constitution. The TJRC Act made the
AG an ultimate receiver of the recommendation for amnesty probably in order for
him not to feel that his constitutional authority had been abrogated with regard to
the crimes in question.68 However, the involvement of the AG in this regard cre-
ated room for potential abuse or politicization of the amnesty process, given that
his role in the process was not clearly defined. The fear of politicization emerges
because, pursuant to Kenya’s 2010 Constitution (under which the TJRC finalized
its operations), the AG is not only a political appointee of the President, but also a
member of the cabinet by virtue of his position.69 Therefore, to minimize actual or
perceived politicization and give more credibility to the amnesty process, it would
have been more prudent if the mandate to grant amnesty was vested expressly and
exclusively in the TJRC itself as the case was with the South African Truth and
Reconciliation Commission.70
5.2.3.2.3 Conditional Amnesty
Kenya had the idea to put in place an amnesty regime modelled partly around that
of the South African Truth Commission.71 Consequently, although the Kenyan
TJRC had the mandate to recommend the granting of amnesty to “any person” in
respect of “any act or omission”, no absolute or blanket amnesty would have been
recommended. The law imposed a general condition on the applicant for amnesty
to make a “full disclosure of all relevant facts” about the act, omission or offence
in respect of which amnesty was applied.72
Even upon a full disclosure, the decision to grant or not to grant amnesty would
have further depended on the following additional conditions: (i) the motive of the
perpetrator when he committed the act; (ii) the context of the act; (iii) the legal or
factual nature of the act, including its gravity; (iv) the objective of the act—
whether it was primarily directed at a political opponent or state property or per-
sonal or against private property or individuals; (v) whether the act was committed
in execution of an order or on behalf of or approval of a organization, institution,
67 For details, see Lévy 2007, pp. 551 et seq.

68 But this consideration must have been rendered irrelevant after the adoption the 2010
Constitution which, as already shown (supra Sect. 4.4.2), deprived the Attorney-General of the
prosecutorial authority and vested it exclusively in the Director of Public Prosecutions.
69 Constitution of Kenya of 2010, Articles 156(1) and 152(1)(c).
70 This mandate was given to the amnesty committee of the Commission. See s. 20 of the
Promotion of National Unity and Reconciliation Act No. 34 of 1995 (hereafter “South African
TRC Act”).
71 See generally Du Bois-Pedain 2007.
72 TJRC Act, s. 38(1)(b).Cf. South African TRC Act, s. 3(1)(b).
liberation movement or body of which the perpetrator was a member; and (vi) the
relationship of the act with the political objective pursued.73
However, one aspect about the amnesty provisions is that the Kenyan law failed to
be as precise as that of the South African Truth and Reconciliation Commission. The
specific criteria for amnesty under provisions of section 38(3) of the Kenyan TJRC
Act outlined above are far from clear. For example, paras a and c of section 38(3) only
mentioned the “motive” and “objective” of the perpetrator to be among the factors that
would have been taken into account in determining whether or not an act, omission or
offence qualified for amnesty. Similarly, para f of the same provision added in particu-
lar that the “political objective” of the act, omission or offence would have been
another criterion.74 However, unlike the South African Truth and Reconciliation
Commission, the Kenyan TJRC was not given any guidance as to what “political
objective” and “motive” would have been determined. In particular, the TJRC Act did
not stipulate what kind of motive or objective with which the act, omission or offence
should have been committed in order for it not to qualify for amnesty. Unlike the
Kenyan legislation, the legislation establishing the South African Truth Commission
explicitly stated that, apart from the condition of “full disclosure”, only acts commit-
ted or omissions “associated with a political objective” were eligible for amnesty.75 In
addition, the South African law went further to define and set out clearly the parame-
ters of what constituted acts “associated with a political objective”.76
Thus, the conditions for the proposed amnesty in Kenya were unclear and insuffi-
ciently explained in the law. If the TJRC had decided to grant amnesty, it would have
inevitably adopted its own specific criteria from the general “political objective” cri-
teria given in the legislation.77 But even so, the considerations in the following sec-
tions would have played a clearly significant role in the amnesty process.
5.2.3.2.4 Crimes not Eligible for Amnesty
As shown in Sect. 3.2, almost all the attacks and retaliatory attacks committed
during the post-election violence in Kenya were motivated by two closely related
factors, namely political and ethnic objectives. If one assumed that all the crimes
“associated with a political objective” were to qualify for amnesty without hav-
ing to meet further criteria, and in the absence of a clear definition of a “political
73 TJRC Act, s. 38(3).

74 NB. Section 2 of the TJRC Act also referred to the “political motive” of the specific acts listed
as being a factor that would make such acts qualify as “gross human rights violations”. See para-
graph f. Cf. South African TRC Act, s. 20 (1)(b).
75 South African TRC Act, ss. 3(1)(b), (4)(c) and 18 (emphasis added).
76 Ibid., s. 20(2) and (3). See also Bubenzer 2009, p. 11–18; Bhargava 2002, pp. 1304 et seq.;
Pedain 2006, pp. 205–210. For an in-depth study regarding the amnesty granted in South Africa
see Sarkin-Hughes 2004.
77 Cf. Pedain 2006, pp. 200–204 (identifying practical challenges in this regard with reference to
the South African TRC).

objective”, then perhaps almost all criminal acts committed during this violence
would have qualified for amnesty under the TJC Act.
However, according to section 38(c) of the TJRC Act, one criterion in the deter-
mination of whether or not a crime qualified for amnesty would have been the
“legal and factual nature” of that crime, including its “gravity”. Although the TJRC
Act did not elaborate what the “legal nature” of the crime entailed, it is not difficult
to infer its meaning in light of other provisions of the legislation. In this regard,
there were provisions which identified specific crimes in the TJRC Act and explic-
itly disqualified them from amnesty, ostensibly due to, among other things, their
“legal nature” under international law. Section 34(3) of the Act provided as follows:
[N]o amnesty may be recommended … in respect of genocide, crimes against humanity,
gross violations of human rights or any act, omission or offence constituting a gross viola-
tion of human rights including extra judicial execution, enforced disappearance, sexual
assault, rape and torture.
The strict exclusion of acts constituting genocide, crimes against humanity and gross
human rights violations such as torture and forced disappearances from the scope of
the amnesty is proper; and is welcome. As one can easily note, war crimes are not
mentioned in the quoted provision, although they, too, should have been excluded
from the scope of the proposed amnesty. However, this omission should not necessar-
ily be construed as an oversight; it ostensibly resulted from the fact that no war crimes
had been committed in Kenya falling within the temporal mandate of the TJRC.
The exclusion of the core crimes from the scope of the amnesty is consistent with
the earlier recommendation given by the UN High Commissioner for Human Rights
on how the amnesty issue should be handled in the proposed Kenyan TJRC Act. The
aim of the recommendation was to ensure that the amnesty to be granted in Kenya
would remain in conformity with the international customary law according to
which the granting of absolute amnesties in respect of such acts is prohibited.78
Thus, the amnesty proposed in Kenya clearly differed from the initial trend of
amnesties, mostly in the South American transitions, such as Peru and Chile. In
these transitions, laws were promulgated to grant absolute and blanket self-amnes-
ties to perpetrators of gross violations of human rights, specifically to benefit the
ousted dictators and their henchmen. In many instances the Inter-American Court of
Human Rights declared these types of amnesties to be against international law.79
78 Office of the UN High Commissioner for Human Rights 2008, p. 17. See also Amnesty
International 2003; Stahn 2005, pp. 695 et seq.; Meisenberg 2004, pp. 837 et seq.; UN
Commission on Human Rights, Resolution 2002/79, 25 April 2002, s. 2. For more information
on amnesties generally see Freeman 2009.
79 See Barrios Altos v. Peru, Inter-American Court of Human Rights, Judgment of March 14, 2001
(Merits), paras 41–44 (see also the Concurring Opinions of Judge A.A. Cancado Trindade and Judge
Sergio Garcia Ramirez); Almonacid-Arellano et al. v. Chile, Inter-American Court of Human Rights,
Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs) paras 105–
128. The Special Court for Sierra Leone (SCSL) has followed the same trend. See Prosecutor v. Morris
Kallon and Brima Buzzy Kamara, SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Appeals
Chamber Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, paras 66–74.
5.2.3.2.5 Non-utilization of the Amnesty Mandate
The original TJRC Bill had proposed the exclusion of only two categories of
crimes, namely crimes against humanity and genocide, from the scope of the
amnesty in Kenya. This narrow exclusion elicited strong criticism from various
sources, including Amnesty International. The argument was that there was an
implicit proposal in the Bill for the granting of an “illegal blanket amnesty” for
other atrocities which, even though might fail to meet the legal requirements for
genocide or crimes against humanity, they still constituted serious human rights
violations.80 Owing to such criticism, the Bill was amended, and as a result, the
formulation adopted in section 34(3) in the TJRC Act required that “gross viola-
tions of human rights” or “any act, omission or offence constituting a gross viola-
tion of human rights” be also strictly excluded from amnesty.
In view of the above-mentioned amendment, the scope of conduct excluded from
amnesty became very broad to the extent that almost no crimes would have qualified
for amnesty, given that the definitions of “crimes against humanity” and “gross vio-
lations of human rights” in section 2 of the TJRC Act were, as already discussed,
extremely broad.81 Therefore, on that basis, and also on the basis of the flawed pro-
cedure which only empowered it to recommend and not grant amnesty, the TJRC
deliberately, and justifiably so, decided not to utilize its mandate on amnesty.82
5.2.3.3 Powers to Recommend Prosecutions
One of the tasks of the TJRC was to identify persons who might have been respon-
sible for or involved in human rights violations and other atrocities and recom-
mend them for prosecution.83 Truth commissions are not in any respect substitutes
for criminal courts.84 Consequently, although the Kenyan TJRC had the mandate
to investigate crimes, such mandate did not confer upon it the ability to determine
individual criminal responsibility. Regardless of how broad or thorough the inves-
tigations of the Commission may have been, such investigations could only be a
cursory pointer as to the nature of the crimes committed; they cannot meet the evi-
dentiary standard that a criminal court trying such crimes would require.
The TJRC’s mandate to recommend prosecution must therefore be understood
as a corollary of its mandate to recommend further investigations. The reason is
80 See Amnesty International 2008, pp. 4–5; Kenya Truth, Justice and Reconciliation
Commission Report 2013, Vol. I, paras 54–56, and 115–121.

81 See supra Sect. 5.2.2.4.
82 Kenya Truth, Justice and Reconciliation Commission Report 2013,Vol. I, paras 122–125.
83 TJRC Act, ss. 5(d), 6(f) and 6(k)(ii).
84 Cf. Amnesty International 2007, pp. 8–10; Inter-American Commission on Human Rights,
Report No. 36/96, case 10.843 (Chile), 15 October 1996, paras 75 and 77; Inter-American
Commission on Human Rights, Report No.136/99, case 10.488 (El Salvador), 22 December
1999, paras 229–230.
that even though the TJRC was empowered to “recommend prosecution”, legally
speaking, its recommendations would not have the effect of overriding the decision
of the Kenyan prosecutorial authority which has the ultimate constitutional powers
to determine whether or not there is actually a prosecutable case. Thus, although
not expressly stated, the TJRC’s mandate in this respect only sought to provide
the important link between the Commission’s investigative roles on the one hand
and the investigative and prosecutorial roles of the national criminal investigative
and prosecutorial authorities on the other hand. It is submitted that depending on
the level of coordination and management put in place, such a link or relationship
could profoundly enhance the fulfilment of Kenya’s duty to prosecute the alleged
crimes against humanity committed during the post-election violence.
Pursuant to its mandate to recommend prosecution, the TJRC identified about
80 names of individuals and recommended further investigations against them,
specifically for being criminally linked to the crimes committed during the 2007–
2008 post-election violence. Out of this number, 56 individuals, mostly politicians,
were directly derived from the list of alleged instigators, planners, sponsors or
funders of the violence which had been compiled by the Kenya National
Commission on Human Rights following its inquiry into the violence.85 The rest
were names which had emerged during TJRC’s hearings, being persons who were
adversely mentioned as having participated directly or indirectly in the commis-
sion of crimes during the violence.86 The TJRC insisted that its recommendation
for further investigations was binding on the Director of Public Prosecutions
(DPP) and that such investigations must be concluded within 1 year after the pub-
lication of its final report.87
In view of the pivotal role of evidence in any criminal prosecution, and pursu-
ant to the TJRC’s recommendation for further investigations and prosecutions, it
is now relevant to analyze the manner in which the Kenyan prosecutorial author-
ity and national courts should treat the bulk of information (evidence) already
disclosed to the TJRC and which may, at the same time, become relevant for sub-
sequent prosecutions in the domestic courts. It is conceivable that in some cases,
this information may have been the very basis upon which the recommendation
for prosecution or further investigation has been made by the TJRC. It is notable
that the TJRC Act contains some provisions on how such information should be
handled by the national courts, but it does not specifically have any clear provi-
sions on the relationship between the TJRC and the domestic prosecutorial author-
ities. It will be shown subsequently that some provisions in the TJRC Act could
either boost or vitiate this relationship and, more specifically, affect prosecutions
in the national courts.
But before further examination is done in this respect, the powers of the TJRC
with regard to information gathering are first outlined and analysed. This analysis
85 Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, Appendix 2, S/N
119–175. See also supra Sect. 4.3.1.4.1.

86 Ibid., Appendix 1.
87 Ibid., paras 13–14.
is crucial in view of the fact that the manner in which certain information was
gathered and handled by the TJRC may, in the future, determine how such infor-
mation should or can be handled by the courts, and also whether such information
will remain “usable” for purposes of a criminal trial.
5.2.3.4 Information Gathering Powers
Most truth commissions rely on voluntary disclosure of information as an inherent

method of truth-seeking. Information on the violations or atrocities under investi-
gation is gathered from willing persons, including victims, witnesses or perpetra-
tors, who are responding to a call, persuasion or encouragement by the
commission to do so. In some past transitions, this has been the only information
gathering method available to the truth commissions.88
However, some truth commissions are given powers to also employ non-volun-
tary methods of information gathering. These methods do not depend entirely on
the willingness of the information giver to volunteer information. Rather, they
involve elements of compulsion anchored on the commission’s quasi-judicial pow-
ers, such as powers to issue summonses to appear, subpoena information, conduct
search and seizure of documents, etc.89 The availability of such powers to a truth
commission signifies the goal to enable the particular commission gather as much
information as is required to accomplish commission’s core business, namely find-
ing of the truth.
The Kenyan TJRC had powers to gather “any information” it considered rele-
vant by using “any means it deemed appropriate”.90 As a traditional method, it
was required to use the voluntary means of information gathering in the first
place.91 In addition, it was also given powers to use “compulsion” where neces-
sary to gather information. The commission had powers to (i) demand “any infor-
mation”, including documentary evidence from any source, and “to compel the
production of such information as and when necessary”; (ii) visit any place with-
out prior notice in order to obtain information, including taking copies of any nec-
essary documents; (iii) “compel the attendance of any person … to appear and to
answer questions relevant to the subject matter of the session or hearing”; (iv)
“require statements [to] be given under oath or affirmation”; and (v) issue sum-
mons to appear to any person, ordering him to “to produce any document
thing or information that may be considered relevant to the functions of the
88 See, e.g., Cueva 2006, pp. 78–79, indicating that the Peruvian truth commission only relied on
“its own friendly persuasion to obtain information and testimonies it needed”.

89 See generally Freeman 2006, pp. 188–221.
90 TJRC Act, s. 7(2)(1.a).
91 See Ibid., s. 20(5)(a) and (b). A special form was designed for voluntary information gath-
ering. See Kenyan TJRC Statement Form at http://www.tjrckenya.org/images/documents/state-

ment-taking-form.pdf. Accessed April 2013.
Commission”.92 To ensure that these “coercive” means worked, the commission

had the police at its disposal in order enforce such powers. 93 In addition, any fail-
ure to cooperate with the commission in this regard amounted to a criminal
offence punishable with a fine of up to 100,000 Kenyan shillings (about USD
1,200) or imprisonment for 1 year, or both.94
5.2.3.5 Handling of Information Gathered by the TJRC
Given the TJRC’s vast information gathering powers, it is proper to examine how
information so gathered must be handled, especially between the commission and
the investigative and prosecutorial authorities or the national courts. This includes
the handling of information disclosed to or obtained by the TJRC in respect of
atrocities for which subsequent investigations or prosecution have been recom-
mended. As Burgess notes, in such instances, the major issue usually becomes
“whether information given to the commission must be made available to those
bodies responsible for prosecutions, or alternatively, whether it should be privi-
leged”.95 Schabas adds that in such scenarios, the prosecutors and defence lawyers
might be tempted to go on “fishing expedition” in the records and archives of the
commission with a view to obtaining evidence for their cases.96
5.2.3.5.1 Confidentiality Versus Sharing of Information
With the exception of information divulged during the public hearings, the TJRC
Act provided clearly that certain type of information gathered by the TJRC must
remain confidential. This includes: (i) information or documentation accompany-
ing an application for amnesty (ii) information and evidence obtained by the com-
mission during an investigation; and (iii) deliberations of the commission leading
to any decision, including a decision regarding the conducting of an amnesty hear-
ing in camera.97 As to whether this privileged information could be shared
92 TJRC Act, s. 7(2).

93 Ibid.,s. 7(2)(1.i). This model had been used in other transitions prior to Kenya. See, e.g.,
s. 29(1)(c) of the TRC Act (South Africa); s. 13 of the National Reconciliation Commission
Act of 2002 (Ghana); s. 27(d) of the Act to Establish the Truth, and Reconciliation Commission
of Liberia of 2005(Liberia:); s. 14(1)(c) of the UN Transitional Administration in East Timor,
Regulation 2001/10 (East Timor); and s. 8(1)(g) of the Truth, and Reconciliation Commission
Act of 2000 (Sierra Leone).
94 TJRC Act, s. 7(3)–(7).
95 Burgess 2004, p. 144.
96 Schabas 2004, p. 32. See also Cueva 2006, pp. 83–85 (explaining the “friction” and “estrange-
ment” between the Peruvian TRC and the Prosecutor’s General Office with regard to sharing of
the information gathered by the commission).
97 TJRC Act, s. 36(9)(a).
depends on who wanted to share it i.e. whether it is a commissioner or employee

of the commission or the commission as an institution.
The TJRC Act absolutely prohibited TJRC employees (including the commis-
sioners) from divulging any confidential information in a manner that is inconsist-
ent with their functions as members of staff of the commission.98 However, the
Commission as an institution or entity was not prohibited from sharing its infor-
mation. Article 36(9)(b) of the TJRC Act is clear that although the information
gathered by the TJRC is generally confidential, such confidentiality would lapse
“when the Commission decides to release such information”.
Therefore, apart from the information published in its final report, the TJRC was,
in principle, not prohibited from sharing any other information in its custody at any
time and in any manner that it deemed fit. This could include sharing of the informa-
tion with the Kenyan prosecutorial authorities or national courts. The existence of
the possibility to share information in this way heeded to the advice by Amnesty
International that had criticized the provision in the TJRC Bill which intended to
absolutely prohibit the TJRC from sharing any of its information. The advice had
hinted that such an absolute prohibition would eventually become an obstacle to
both “the transmission of evidence and information to national prosecution authori-
ties and to plaintiff victims and their families in civil proceedings for reparations”.99
Indeed the liberty to share its information in this regard adds more sense to the
TJRC’s mandate to recommend further investigation or prosecutions. Any credible
evidence in the custody of the Commission pointing to individual criminal respon-
sibility for any conduct, could, in the TJRC’s its own initiative, and on a confiden-
tial basis, been forwarded to the DPP for further investigations and prosecutions.100
And if the national courts subpoena information from the commission’s archives,
such information should be given or retrieved by following a procedure which
should have been put in place.101
This book was finalized when the TJRC had already been dissolved. Yet there was
no indication that the Commission had put in place a mechanism or procedure per-
taining to how its information should be shared after its dissolution. According to sec-
tion 52(1) of the TJRC Act, the TJRC dissolved automatically 3 months after the date
of submission of its final report to the President. This means that the Commission dis-
solved already by September 2013. But before it stood dissolved by law, the TJRC
was required to leave in place a clear mechanism regarding how to organize its
“archives and records for possible future reference”, specific consideration being on
98 Ibid., s. 23.
99 Amnesty International 2008, p. 6.
100 Cf. The Peruvian TRC. See also Cueva 2006, pp. 85–89. Previous commissions which had or
exercised the authority to share their information this way are those in Uganda, Argentina, Haiti,
the Republic of Korea, Peru and East Timor. See Freeman 2006, pp. 172–173.
101 Cf. Report of the Chilean National Commission on Truth and Reconciliation, Vol. 1 (English
Version) 1993, p. 22 (noting that the commission was empowered to submit (and it actually
submitted) to the courts any evidence it came across which was relevant for further judicial
investigations.).
(i) the information that may be made available to the public “either immediately or
when conditions and resources allow”; and (ii) the necessary measures “to protect
confidential information”.102
One critical issue that must be addressed now is the extent to which such infor-
mation would be useful if it was in fact shared or if is retrieved from the archives
of the commission.
5.2.3.5.2 Incriminating Information
According to section 36(9)(c) of the TJRC Act, information embodying any con-

fession or admission made before the TJRC about person’s past crimes cannot be
used in any subsequent criminal or civil proceedings against the person who made
it. Similarly, according to section 24(3), a person who appeared or testified before
the TJRC (as victim, witness or perpetrator) cannot be held liable for “any crimi-
nal or civil proceedings or to any penalty or forfeiture in respect of any evidence
or information he or she [gave] to the Commission”. These provisions might have
two implications on the post-TJRC prosecutions (if any), including the prosecu-
tion of atrocities linked to the post-election violence.
5.2.3.5.2.1 Witnesses’ Testimonies Incriminating Perpetrators

The information given to the TJRC by a person (witness) who testified against an
alleged perpetrator of a past atrocity cannot form the basis of a subsequent crimi-
nal or civil trial against the giver. It follows, therefore, that even if such informa-
tion was false or malicious, the person against whom it was given has no recourse
whatsoever against the person who gave it as the former would otherwise have,
for example, in cases befitting the common law suits of malicious prosecution.
However, there is nothing speaking against such information being used against the
perpetrator in a subsequent criminal trial. This, however, does not necessarily mean
that this kind of information will be automatically admissible as evidence even if
the criminal trial ensues from the recommendation of the TJRC. Rather, the usual
procedures of evidence scrutiny, including cross examination must be followed.
One possible challenge is worth noting. If the prosecutors in the subsequent
trial will seek to use the same witnesses who gave evidence against the accused
before the TJRC, there may be reluctance on the part of these witnesses to tes-
tify “again” before a fully constituted criminal court, the main reason being the
atmosphere in which such criminal trials will take place, specifically the adversar-
ial nature of the trial. Usually, such atmosphere will differ significantly from that
under which the TJRC’s hearings took place. While the environment before the
TJRC might have been friendlier and more informal, the environment in a court
room will always be too formal, confrontational and, sometimes, intimidating for
102 See TJRC Act, Article 52(2).

the witnesses or victims. Thus, to some of the victims, it may be too traumatiz-
ing to repeat the narration of their past experiences under cross-examination hav-
ing previously done so before the TJRC. In the end, the quality of evidence given
before the TJRC by the victims and witnesses who also happen to testify in a sub-
sequent trial could be affected. As a result, evidence that appeared to the TJRC to
constitute a clear case of, for example, crimes against humanity, may end up not
being so clear-cut in a subsequent trial recommended by the TJRC.
Even though no indictment has been instituted pursuant to the recommenda-
tions of the TJRC so far, the challenge anticipated in the foregoing paragraph
should not be ruled out completely. It is thus important for domestic prosecutors
in Kenya to take note of it and figure out ways to mitigate its effect. One such way
is to give due priority to documentary evidence, including that collected by the
TJRC, to corroborate the oral evidence given by witnesses.
5.2.3.5.2.2 Self-incriminating Information
There is also the issue of self-incriminating evidence which may have been dis-
closed to the TJRC by the perpetrators through, inter alia, their confessions, admis-
sions or surrendered documents. Priscilla Hayner makes crucial observations with
regard to this kind of evidence. She states that in transitions where amnesty is pro-
posed as a “carrot”, some perpetrators of past atrocities do disclose information to
truth commissions willingly, hoping that their disclosure will eventually earn them
amnesty. She also states that in instances where truth commissions are vested with,
inter alia, quasi-judicial powers to gather information, perpetrators are sometimes
forced to disclose self-incriminating evidence regarding their own involvement in
the commission of the violations under investigation.103 While Hayner’s first point
does not apply to Kenya, given that the TJRC decided not to exercise its mandate
on amnesty, the second point is relevant and is worth further consideration.
In most jurisdictions, the law on criminal procedure normally requires that in
the course of investigating or prosecuting a crime, before a suspect records a state-
ment or makes any plea before the court, he or she must be cautioned about the
possibility of that statement being used subsequently against him or her in the
trial. If the suspect or accused is properly warned but nevertheless proceeds to give
self-incriminating evidence voluntarily, then such evidence can be used against
him or her in a trial.104
There is no provision in the Kenyan TJRC Act requiring that a person disclos-
ing self-incriminating evidence before the TJRC must be forewarned of a possibil-
ity of that information being used against him or her in a subsequent trial. It is,
therefore, proper that the TJRC Act made it clear that such evidence cannot be
used against that person in a subsequent trial against him or her. It appears from
this prohibition that it is irrelevant whether or not such a trial ensues from the
103 Hayner 2011, p. 117. Cf. Nerlich 2006, pp. 55–57.

104 Cf. Kenyan Criminal Procedure Code, Cap 75 (R.E 2009), s. 137 F(a)(iv).
recommendation of the TJRC. This is in line with an established principle of fair

trial in criminal cases that generally offers protection to accused persons against
self-incrimination.105 However, nothing speaks against the use of self-incriminat-
ing evidence disclosed to the TJRC as a means to locate other key sources of evi-
dence for a subsequent trial, such as the tools of commission of the crimes,
remains of victims, if any; or even to identify key prosecution witnesses.106
5.2.3.5.2.3 Implications of Absolute Protection Against Self-incrimination

At another level, in transitional contexts such as Kenya, where a combination of
mechanisms of justice have been adopted, offering an absolute protection against the
use of self-incriminating evidence, including that disclosed voluntarily before the
truth commission, has both negative and positive implications, first on the truth-
seeking process and second, on criminal accountability for the crimes investigated.
The experience from the Sierra Leone transition provides clear evidence that a truth
commission and criminal prosecutions can co-exist and actually operate in tandem or
simultaneously. However, the same experience shows that although such co-existence
is possible and actually desirable, the handling of self-incriminating evidence may
require a more careful regulation due to its implications on the transition.107
As indicated earlier, the reason for the adoption of the strategy of full disclosure
in exchange for amnesty in Kenya was to enable the TJRC accomplish its key
objective, namely “establishing an accurate, complete and historical record” of the
acts it was mandated to investigate. The protection against the use of self-incrimi-
nating evidence in a subsequent trial presents itself also as a technique for achiev-
ing the same objective. The reason is that this technique is useful in transitional
contexts as an incentive for the perpetrators not only to come forward and testify
voluntarily before the truth commission, but also to make full disclosure, thereby
facilitating the goal of reconciliation.108 For instance, in 2002, after the Sierra
Leonean truth commission and the Special Court had been established, an NGO
working with ex-combatants stated that the ex-combatants had said that they would
cooperate with the truth commission only if they were assured that whatever testi-
mony (truth?) they gave to the commission would not be used against them in any
subsequent prosecutions by the Special Court.109 Human Rights Watch indicated
105 Cf. Bisset 2012, pp. 129–134 (discussing the dilemmas of incriminating evidence obtained
by truth commissions in relation to subsequent trials before the ICC); Constitution of Kenya of
2010, Article 50(2)(l); International Covenant on Civil and Political Rights, Article 14(3)(g). For
details on the principle against self-incrimination see Helmholz et al. 1997.
106 Cf. Report of the Chilean Truth Commission Report 1993 (English Version), p. 22; Freeman
2006, pp. 173–174 (highlighting the critical challenges that may arise if there is no proper mech-
anism of managing the archives of a truth commission after its dissolution).
107 Cf. Schabas 2004, pp. 25–41.
108 Cf. International Centre of Transitional Justice 2002, p. 13; Burgess 2004, p. 145.
109 Letter from PRIDE to ICTJ as quoted in International Centre of Transitional Justice 2002,
p. 8. See also Schabas 2004, p. 28.

that such “truthful testimony” by the ex-combatants could be useful in subsequent

prosecutions by the Special Court but only if it was to be used in favour of the per-
petrators, e.g. to justify a “reduced sentence”.110
On the other hand, there is a “negative” side of availing total protection or privi-
lege against self-incriminating evidence. Such a protection could end up becoming
a “danger” or setback in a transitional justice context. When prosecutions are tied
to, or are expected to ensue from, a truth-seeking process, the perpetrators of the
violations in question could go before the truth commission voluntarily and make a
deliberate revelation of self-incriminating evidence. In doing so, they could be
indifferent about whether or not they will eventually be granted amnesty. In fact,
they could even be sure that on the basis of the very information they disclose,
amnesty will be denied. In adopting such a strategy, the intention of the perpetrator
may be to pre-empt the prosecution’s evidence in future trials (civil or criminal)
against them, since such evidence will, in principle, no longer be admissible.111
In view of the “danger” identified in the preceding paragraph, and even before
the Kenyan TJRC Act was passed by Parliament, Amnesty International expressed
its scepticism about the implication of availing absolute protection against self-
incrimination in the Kenyan context. It stated that such a protection would hinder
subsequent prosecutions instead of facilitating them. It was particularly noted that
such a protection would “easily be used by the perpetrators to shield themselves
from future prosecutions and civil suits for reparations regarding any crime”; and
that it would “create obstacles to the transmission of evidence and information to
national prosecution authorities and to plaintiff victims and their families in civil
proceedings for reparations”.112
The East Timor experience reveals that its truth commission did not offer abso-
lute protection in this regard. The self-incriminating evidence revealed before the
commission was not protected or privileged; it could be used against the person
giving it or other persons, provided it had been given voluntarily.113 On its part,
the Special Court for Sierra Leone prevented the suspects already indicted for-
mally before it from going to testify before the Sierra Leone truth commission,
despite the fact that they were willing and wished to do so.114 It appears that the
Special Court acted this way in order to eliminate the possibility of the suspects to
pre-empt the criminal trials before the Special Court by deliberately revealing self-
incriminating evidence before the truth commission knowing that such evidence
would no longer be admissible before the Court. But the Special Court succeeded
110 Human Rights Watch 2002, fn 10.

111 Cf. Nerlich 2006, pp. 60–61.
112 Amnesty International 2008, p. 6; Burgess 2004, p. 145.
113 See Burgess 2004, p. 145; Freeman 2006, pp. 172–173 (noting that information revealed vol-
untarily to a truth commission must not be privileged, but as a matter of procedural fairness,
truth commissions must forewarn the deponents about possible consequences of their testimony,
including the possibility that self-incriminating evidence may be used against them in future
trials).
114 See Schabas 2004, p. 30.
in this regard largely because in the Sierra Leonean transitional justice arrange-
ment, the Special Court and the truth commission operated simultaneously, and,
luckily, the indictment before the Court had preceded the attempt by the suspects
to testify before the commission. In Kenya the scenario is different: prosecutions,
if any, will ensue long after the truth commission has finished its work. Thus, the
Kenyan courts, unlike the Special Court, no longer have the opportunity to prevent
perpetrators from disclosing self-incriminating evidence before the TJRC.
From the final report of the Kenyan TJRC, it cannot be established how much
self-incriminating evidence (if any) was revealed by those who appeared before
it. For that reason, it cannot be predicted how, in the aftermath of the commis-
sion’s work, the Kenyan courts will resolve challenges pertaining to the handling
of such evidence in connection with subsequent prosecutions (if any) ensuing from
the TJRC process.
5.3 Vetting of Judges and Magistrates
One of the major reformative steps taken after Kenya’s post-election violence was
lustration through the vetting of the judiciary. Vetting refers to a process by which
the integrity of individuals is assessed with a view to establishing their suitability
for public employment. In a post-conflict or post-dictatorship situation, vetting
(also called purging of public service) ordinarily targets public institutions which
were complicit or were perceived to be complicit or sympathetic to abuses of
human rights during the conflict or dictatorship. The aim of vetting is usually to
transform the particular public institutions by excluding from public service indi-
viduals with “integrity deficits” in order not only to strengthen the efficiency and
independence of the institution in question, but also to re-establish civil trust, pub-
lic support and confidence in it.115
In Kenya, the said vetting was done pursuant to the Vetting of Judges and
Magistrates Act (hereafter “Vetting Act”)116 which was enacted in 2011. This law
established a mechanism and laid down procedures for vetting of judicial officers,
namely judges, magistrates, Registrar of the High Court and Chief Court
Administrator.117 The process aimed at determining whether judicial officers who
were serving in the judiciary prior to the adoption of Kenya’s Constitution of 2010
were still suitable to continue serving in that office.118 The task of carrying out the
115 For more details see United Nations Development Programme 2006.
116 Available at http://www.jmvb.or.ke/images/documents/vetting_act.pdf. Accessed May 2013.
117 Vetting Act, ss. 4 and 20. For greater detail see Imende 2012; UNDP-Kenya 2010.
118 Vetting Act ss. 2–4, read together with Articles 10, 159 of the Constitution of Kenya of and
s. 23 of the sixth Schedule. Two options were given to the judicial officers: (i) Those who did
not want to be vetted could retire early from the Judiciary and (ii) Those who wanted to continue
working in the judiciary must be vetted. But early retirement benefits were offered to both those
who opted for an early retirement as well as those who chose to be vetted but were found unfit to
remain in office. See Vetting Act, s. 24.
5.3 Vetting of Judges and Magistrates 169
vetting exercise was vested in the Judges and Magistrates Vetting Board (hereafter
“Vetting Board”),119 which was chaired by Mr. Sharad Rao, an experienced barris-
ter from the UK.120
In determining the suitability of a judge or magistrate, the Vetting Board was
required to consider a range of criteria, including: (i) whether the judge or magis-
trate met the constitutional criteria for appointment to such office121; (ii) past work
record, including his or her previous pronouncements; (iii) if there had been any
pending or concluded criminal case or any recommendation to prosecute such a
person for involvement in any crime, including corruption; and (iv) if there was
any pending complaint against the judge or magistrate.122 Furthermore, the Vetting
Act required that the matters listed in (i) and (ii) above be determined against the
bedrock of candidate’s (a) competence and intellectual capacity; (b) communica-
tion skills; (c) integrity; (d) fairness; (e) temperament; (f) good judgment; and (g)
legal and life experience.123
The number of candidates for vetting included 58 judges, 352 magistrates, the
Registrar of the High Court and the Chief Court Administrator.124 The vetting pro-
cess commenced on 23 February 2012.125 By February 2013, nine of the judges who
were serving in the High Court or Court of Appeal, who opted to be vetted, had been
declared unsuitable to continue in office for various reasons, including the lack of
impartiality; deliberate wrong application of the law with a view to serving the inter-
ests of the repressive regime or those of the people accused of grand corruption; lack
of integrity; unjustifiable delay of judgments, etc.126 As of June 2013, the vetting of
Magistrates had just commenced. Apart from the vetting process, other structural
and administrative reforms were introduced in the judiciary through the new
Constitution.127 These included, inter alia, the appointment of a new Chief Justice
and other judges some of whom had never served in the Judiciary before.
In view of the foregoing, one relevant question arises: To what extent may the
judicial reforms resulting from the judicial purges have an impact on the criminal
accountability for the crimes committed during the post-election violence? It is
noteworthy that after the said reforms, public confidence in Kenya’s Judiciary
increased empirically. For example, in December 2008, a few months after the
post-election violence, public confidence in the judiciary was only 31 %. After the
119 For establishment, membership and appointment see Vetting Act, ss. 7–12.
120 See Judges and Magistrates Vetting Board Members Profile http://www.jmvb.or.ke/
index.php/about-us/members-profile. Accessed May 2013.
121 See Constitution of Kenya of 2010, Article 166(3–5).
122 Vetting Act, s. 18(1).
123 Ibid., s. 18(2).
124 Kenya Judges and Magistrates Vetting Board 2012, para 13.
125 Ibid., para 36.
126 Business Daily, 25 January 2013. For detailed reports on the determinations of the vetting
process see the announcements of the Vetting Board http://www.jmvb.or.ke/index.php/reports.

Accessed September 2014.
127 See Constitution of Kenya of 2010, Chap. 10.
reforms introduced by the new constitution, and especially after the commence-
ment of the vetting process which was done publicly, surveys show that between
December 2012 and January 2013, the Judiciary had regained “unprecedented
public confidence” ranging from 75 to 78 %.128
Therefore, as at October 2013, the fear that the Kenyan judiciary lacks capacity,
integrity, impartiality, independence and public trust to try the masterminds of the
post-election violence was lower. However, the practical impact of these judicial
reforms on criminal accountability for the crimes associated with the post-election
violence can only be measured if the reformed judiciary was “triggered” in this
regard by the investigative and prosecutorial authorities. This means that if those
crimes are not charged, and thereby impunity is perpetuated, the first institution
to bear the blame will not be the Kenyan judiciary but the prosecutorial author-
ity which is vested with responsibility to set the courts (judiciary) in motion (see
supra Sect. 4.4). Only when the concrete cases are brought to courts can the will-
ingness, independence, competency and capacity of the reformed judiciary to pun-
ish the “big fish” responsible for the post-election violence be assessed effectively.
It is to be noted, however, that apart from hiring new top leadership, Kenya’s
investigative (police) and prosecutorial institutions were not vetted.
5.4 Chapter Summary
This chapter has highlighted alternatives and adjuncts to domestic prosecutions,

the main focus being on the Kenyan TJRC. It has also briefly highlighted the
ongoing vetting process in Kenya.
The chapter has shown that Kenyans decided to establish a truth commission
and gave it vast temporal and subject matter mandates in order to ensure, inter
alia, that the truth about atrocities committed in the past is uncovered through an
investigative process. In this regard, the commission was given the mandate to rec-
ommend the granting of amnesty as well as to recommend prosecutions for those
responsible for serious crimes or gross violations of human rights. On the face of
it, the proposed amnesty would have complied with international law. However,
the commission decided not to exercise its mandate on amnesty due to, inter alia,
the extra-ordinarily narrow scope of the proposed amnesty, and also due to the fact
that the commission did not have full powers: it could only recommend but not
grant amnesty.
The chapter has also identified strengths and shortcomings of the relationship
between the Kenyan TJRC process and national prosecutions, especially the pros-
ecution of the crimes related to the post-election violence. It has been shown that
one positive aspect of such relationship is the fact that the TJRC was not barred
from sharing its information with national investigative, prosecutorial or courts
128 Kenya National Dialogue and Reconciliation Monitoring Project 2013, paras 38–43.
5.4 Chapter Summary 171
where necessary. If this is genuinely done, it may tremendously facilitate post-

TJRC investigations and prosecutions. However, one critical issue whose improper
coordination has the potential of vitiating prosecutions (if any) to be carried out
subsequent TJRC process is the handling of self-incriminating evidence which was
divulged to the TJRC. Another issue is the potentially disharmonious definitions
between the core crimes, specifically crimes against humanity, as investigated by
the TJRC and the definitions of the crime as found in other national criminal laws.
Lastly, the Chapter has shown that the judicial reforms brought about by, inter
alia, the vetting process significantly boosted the credibility of the Kenyan judici-
ary. However, since no concrete case has been brought to court in respect of the
alleged masterminds of the post-election violence, it is impossible to state conclu-
sively whether or not the reformed judiciary is willing or independent enough to
now punish this category of perpetrators. What is clear though is that the judici-
ary, however competent, independent or credible it may currently seem, will only
be able to act on the alleged crimes upon being “triggered” by the prosecutorial
authority. Thus, the pertinent question still remains whether this authority will
ever take the initiative to charge the political elite who allegedly bear the greatest
responsibility for the violence.
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Kenya. Amani papers, vol I, No 6. http://www.ke.undp.org/content/dam/kenya/docs/Amani%20
Papers/AP_Volume1_n6_Sept2010.pdf. Accessed Aug 2014
OHCHR fact-finding mission to Kenya, 6–28 Feb 2008
United Nations Security Council (2004) Report of the secretary general on the rule of law and
transitional justice in conflict and post-conflict societies, UN Doc. S/2004/616, 23 Aug 2004
Valji N (2009) Trials and truth commissions: seeking accountability in the aftermath of violence.
http://www.csvr.org.za/index.php/publications/1656-trials-and-truth-commissions-seeking-
accountability-in-the-aftermath-of-violence.html. Accessed Aug 2014
Villa-Vicencio C (1999–2000) The reek of cruelty and the quest for healing: where retributive
and restorative justice meet. J Law Relig 14:165–187
Villa-Vicencio C (2000) Why perpetrators should not always be prosecuted: where the International
Criminal Court and truth commissions meet. Emory Law J 49:205–222
Part III
International Responses
Chapter 6
The Kenya Situation Before the ICC
Abstract As part of the road map for criminal accountability for the post-election
violence in Kenya, parties which were involved in the violence agreed categorically
that the ICC’s intervention would be invoked if the agreed domestic judicial mecha-
nisms failed. This agreement would appear to be evidence of a strong determina-
tion to break the “culture of impunity” which had become entrenched in Kenya as
far as gross violations of human rights are concerned. However, when the domestic
mechanisms actually failed and the ICC intervened, both legal and political “battles”
ensued. This chapter addresses the legal issues relating to or arising from the Kenya
situation before the ICC, covering four main areas. Firstly, it clarifies and examines
the trigger mechanism employed; jurisdictional issues and the scope of the charges
and ICC investigations. Secondly, it identifies and analyses contentious legal issues
arising in relation to the definition of crimes against humanity and the principle of
complementarity. Thirdly, it evaluates Kenya’s legal responses as well as political
and diplomatic strategies and reactions to the ICC’s intervention. Fourthly, it exam-
ines the future of the ICC process in Kenya in light of Kenya’s 2013 presidential
election results and other specific developments at domestic level.
Contents
6.2 Issues Relating to Trigger of Jurisdiction............................................................................ 179
6.2.1 Proprio Motu Investigation........................................................................................ 179
6.2.2 The Waki Commission on Trigger Mechanism......................................................... 181
6.2.3 Responses of ICC Prosecutor and Kenyan Government to Trigger Mechanism....... 182
6.3 Issues Relating to Parameters of ICC’s Investigation.......................................................... 185
6.3.1 Temporal Scope of Investigation............................................................................... 186
6.3.2 Subject-Matter Jurisdiction........................................................................................ 191
6.3.3 Locating Crimes in Mount Elgon Area in the Investigation...................................... 192
6.4 Issues Relating to Substantive Criminal Law...................................................................... 194
6.4.1 Prosecutorial Discretion Vis-a-Vis Scope of Charges............................................... 195
6.4.2 Whether Acts Committed During Post-Election Violence Amounted
to Crimes Against Humanity....................................................................................... 200
6.5 Issues Relating to Complementarity.................................................................................... 216
6.5.1 Meaning of Complementarity.................................................................................... 216
6.5.2 Evaluation of “Unwillingness” and “Inability” in Relation to Kenya....................... 218

178 6 The Kenya Situation Before the ICC
6.5.3 Inaction as a Component of Complementarity.......................................................... 219

6.6 Other Responses to ICC’s Intervention................................................................................ 230
6.6.1 Attempts to Have the Cases Deferred Under Article 16............................................ 231
6.6.2 Attempts to Resort to Regional Criminal Jurisdictions............................................. 234
6.6.3 Threats to Withdraw from the ICC Statute................................................................ 237
6.7 The Future of the Kenyan Cases at the ICC......................................................................... 240
6.7.1 Election of the ICC Suspects to Presidency.............................................................. 241
6.7.2 The Integrity Case...................................................................................................... 243
6.7.3 Cooperation from the Kenyan Government............................................................... 247
6.7.4 ICC’s Relationship with the AU in View of the Kenyatta and Ruto Cases................ 248
6.7.5 Interim Conclusion.................................................................................................... 253
6.8 Impact of the ICC’s Intervention in Kenya.......................................................................... 254
6.9 Chapter Summary................................................................................................................ 255
References................................................................................................................................... 256
At the end of 2013, the second phase of proceedings, the trial stage, of one of the two
cases derived from the Kenya situation1 had just commenced at the ICC.2 But the
ICC process with respect to Kenya had commenced officially since 31 March 2010,
the date on which the ICC Prosecutor was authorized by the Pre-Trial Chamber to
commence an investigation.3 Following such an investigation, on 8 March 2011, the
ICC’s Pre-Trial Chamber issued two summonses to appear against six suspects, all of
whom Kenyan citizens. The first summons was issued against William Samoei Ruto
(then suspended Higher Education Minister), Henry Kiprono Kosgey (then Chairman
of the ODM party and former Minister for Industrialisation) and Joshua Arap Sang (a
journalist who was then KASS FM radio executive).4 The second summons was
issued against Francis Kirimi Muthaura (then Head of the Public Service, Secretary
to the Cabinet and Chairman of the National Security Advisory Committee), Uhuru
Muigai Kenyatta (then Deputy Prime Minister doubling as Finance Minister) and
Major General Mohammed Hussein Ali (former police chief).5
1 The word “situation” as used in the ICC legal regime refers to events suggesting that a crime
or crimes under the jurisdiction of the ICC have been or are being committed. It entails a general
state of affairs defined in terms of temporal, territorial and personal parameters, thus specifying
when, where and sometimes who committed or is committing the alleged crime(s). See Decision
on the Applications for Participation in the Proceedings of VPRS1, VPRS2, PRS3, VPRS4,
VPRS5 and VPRS6, Situation in the DRC (ICC-01/04-101-tEN), PTC, 17 January 2006, para 65.
2 For details on the procedural phases of proceedings before the ICC, i.e. pre-trial, trial and
appeal phases, see DeSmet 2009, pp. 405–440; Kress 2003, pp. 606–14.
3 See Decision on the Authorization of an Investigation, Situation in the Republic of Kenya
(ICC-01/09-19), PTC, 31 March 2010.

4 Decision on the Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and
Joshua Arap Sang, Situation in the Republic of Kenya (ICC-01/09-01/11-01), PTC, 8 March 2011. This
decision defines the first case out of the Kenya situation, hereafter cited as Ruto, Kosgey and Sang.
5 Decision on Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta
and Mohammed Hussein Ali, Situation in the Republic of Kenya (ICC-01/09-02/11-01), PTC, 8
March 2011. This decision defines the second case out of the Kenya situation, hereafter cited as
Muthaura, Kenyatta and Ali.
The Pre-Trial Chamber conducted confirmation of charges proceedings from 1

to 8 September 2011 for the first case and from 21 September to 5 October 2011
for the second case. On 23 January 2012, the Chamber issued a consolidated deci-
sion confirming the charges against four of the six accused persons. Charges were
confirmed against Ruto and Sang in the first case and against Kenyatta and
Muthaura in the second case.6 These four accused persons were committed to the
Trial Chamber for trial that was originally scheduled to commence in April 2013,
but was later postponed to September 2013.7 However, before the trial com-
menced, the Prosecutor dropped all the charges against Muthaura, thereby leaving
Kenyatta as the only accused person in the second case.8 In addition, while the
trial of Ruto and Sang commenced in September 2013 as scheduled, that of
Kenyatta was rescheduled to 7 October 2014, but was later postponed indefinitely
in view of serious challenges encountered by the Prosecution.9
6.2 Issues Relating to Trigger of Jurisdiction
6.2.1 Proprio Motu Investigation
The ICC Statute provides for three modalities, commonly referred to as “trigger
mechanisms”, through which the jurisdiction of the ICC can be activated. The first
mechanism is where a State Party to the ICC Statute refers a situation in its own
6 Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373),

PTC, 23 January 2012; Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali
(ICC-01/09-02/11-382-Red), PTC, 23 January 2012.
7 Decision on Prosecution Requests to add Witnesses and Evidence and Defence Requests to
Reschedule the Trial Start Date, Ruto and Sang (ICC-01/09-01/11-762), TC, 3 June 2013.
8 See Statement by ICC Prosecutor on the notice to withdraw charges against Muthaura
http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/OTP-
statement-11-03-2013.aspx. Accessed August 2014.
9 The commencement date of the Kenyatta case was postponed several times on account of the many
challenges faced by the Prosecution in preparing their case, including, inter alia, recantation of evidence
by key witnesses and allegedly lack of cooperation from the Kenyan government (cf. infra Sects. 6.7.3
and 6.7.5). For the chronology of these postponements see Public Redacted Version of “Decision on
Commencement Date of Trial”, Kenyatta (ICC-01/09-02/11-763-Red), TC, 20 June 2013; Decision
Adjourning the Commencement of Trial, Kenyatta (ICC-01/09-02/11-847), TC, 31 October 2013;
Order Vacating Trial Date of 5 February 2014, Convening a Status Conference, and Addressing other
Procedural Matters, Kenyatta (ICC-01/09-02/11-886), TC, 23 January 2014; Decision on Prosecution’s
Applications for a Finding of Non-compliance pursuant to Article 87(7) and for an Adjournment of
the Provisional Trial Date, Kenyatta (ICC-01/09-02/11-908), TC, 31 March 2014; Prosecution Notice
Regarding the Provisional Trial Date, Kenyatta (ICC-01/09/02/11-944), TC, 5 September 2014; Order
vacating Trial Date of 7 October 2014, Convening two Status Conferences, and Addressing Other
Procedural Matters, Kenyatta (ICC-01/09-02/11-954), TC, 19 September 2014.
territory or in that of another State Party’s territory to the Court.10 The second
mechanism is where a situation in a State Party or non-State Party to the Statute is
referred to the ICC by the UN Security Council.11 The third mechanism is where
ICC’s jurisdiction is triggered by the Prosecutor proprio motu (i.e. acting in his or
her own initiative).12 Since the third trigger mechanism, namely proprio motu
referral, was used in respect of Kenya, it is discussed more fully below.
A proprio motu investigation is regulated under Articles 15 and 53 of the ICC
Statute, read together with Rules 46–50 of ICC’s Rules of Procedure and Evidence.13
It operates as follows: Different sources such as individuals, NGOs, human rights
commissions, etc., which may have knowledge or belief that a crime within the juris-
diction of the ICC is being or has been committed, can send “information” (also
known as a “communication”) to the ICC Prosecutor.14 The Prosecutor then assesses
this information to decide whether or not it presents a reasonable basis to proceed
with an investigation. If it does, the Prosecutor must request the Pre-Trial Chamber
to authorize commencement of an investigation into that situation.15 If the Chamber
is satisfied that in fact there is a “reasonable basis to proceed”16 with an investiga-
tion, it will grant Prosecutor’s request.17 Out of such general investigations the
Prosecutor identifies individuals to be charged for the alleged crimes.
10 ICC Statute, Articles 13(a) and 14. For details see Marchesi 2008, pp. 575–579. Note that
according to Article 12(3) of the ICC Statute, a non-state party can also be referred through this
mechanism but only if it has accepted the jurisdiction of the ICC.
11 ICC Statute, Article 13(b) read together with the UN Charter, Chapter VII, Article 39.
12 ICC Statute, Articles 13(c) and 15. For greater detail see Bergsmo and Pejic 2008a,
pp. 581–593.
13 Available at http://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf.

15 See Ibid., Article 15(2) and (3), read together with Article 53(1)(a) (b) and (c) and Rule 48.
16 Four different evidentiary standards are used at different phases of proceedings under the ICC
Statute. The lowest standard is “a reasonable basis to proceed with an investigation” (Articles 15
and 53), which is applied to determine whether an investigation should be authorized. The sec-
ond higher standard is “reasonable grounds to believe” that the suspected person has committed
a core crime (Article 58), which is applied to determine whether an arrest warrant or summons to
appear should be issued. The third higher standard is “sufficient evidence to establish substantial
grounds to believe that the person committed each of the crimes charged” (Article 61(7)), which
is applied to determine whether or not to confirm the charges against specific accused persons.
The fourth and highest evidentiary standard is “proof beyond reasonable doubt” (Article 63(3)),
which is applied to determine the guilt or innocence of the accused person. For more details,
see Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-
01/09-19), PTC, 31 March 2010, paras 21–35.
17 Investigation will not be authorized if the request does not disclose a “reasonable basis to pro-
ceed”. However, it can be authorized subsequently based on new facts and evidence. See ICC
Statute, Article 15(4) and (5).
6.2 Issues Relating to Trigger of Jurisdiction 181
6.2.2 The Waki Commission on Trigger Mechanism
As shown earlier (see supra Sect. 3.4.4), the Waki Commission recommended that
the ICC’s intervention should be invoked only if Kenya failed to create and put to
operation the proposed special tribunal. Even though the inquiry by the Waki
Commission was carried out pursuant to a proposal that originated from an externally
brokered mediation process, the managers of that process did not deprive Kenya
totally of its control over matters pertaining to criminal accountability, specifically
those which would later lead to the trigger of the ICC jurisdiction. Kenya’s control in
this regard can be seen in least two ways, both of which linking to its Parliament.
First, the inquiry into Kenya’s post-election violence was, for the most part, a
Kenyan national process. The reason is that the Waki Commission, which carried
out this particular inquiry, was established pursuant to a national piece of legisla-
tion, the Commissions of Enquiries Act.18 Second, the recommendation regarding
why, how and when the ICC should be asked to intervene was endorsed by
Parliament on 27 January 2009 when it adopted the Waki Report.19 Thus, these
two ways in which the Kenyan Parliament was associated with the process indi-
cate clearly that Kenya was not merely a “consumer” of an externally imposed
idea as far as the road map for criminal accountability is concerned, but rather that
Kenya became a “co-owner” of that idea and the ensuing processes.
It is due to the foregoing that when the ICC Prosecutor was asked to intervene in
Kenya, some of the commentators viewed this invitation more as a self-referral rather
than a call for a proprio motu investigation. Others, like Professor Kai Ambos,
observed that it was “not clear” how exactly to classify the referral of the Kenya situa-
tion.20 The fact that Kenyan Parliament had voted for the “The Hague Option” may
have given the impression that Kenya as State Party to the ICC Statute had decided
(through the Parliament) to “take” itself to the ICC voluntarily. In addition, the fact
that hitherto there is no prescribed format to which a state referral must conform sup-
ports the thinking that a self-referral could take any form which the referring state
deems fit, such as, for example, a parliamentary resolution.21 Thus, those who opined
that Kenya had made a self-referral must have drawn such inference, inter alia, from
the domestic agreements and parliamentary deliberations which, as shown above,
indicated the Parliament wanted the government to embrace the “The Hague option”.
18 Cap. 102 (R.E 2009). Pursuant to this legislation, the Waki Commission was established via
the Kenya Gazette Notice No. 4473, Vol. CX-No.41 of 23 May 2008.
19 See Parliament of Kenya 2008, Doc. Hansard 04.12.08, p. 3874; Parliament of Kenya 2009,
Doc. Hansard 27.01.09, pp. 4426 et seq.

20 Guest lecture delivered on 9 March 2011 at the South African-German Centre for
Transnational Criminal Justice, University of the Western Cape, South Africa. The author was in
attendance.
21 So far, States have used simple letters to make self-referrals. See, e.g., ICC Press Release,
ICC-OTP-20040419-50, 19 April 2004 (DRC referral) and ICC Press Release ICC-
OTP-20050107-86, 7 January 2005 (Central African Republic referral).
However, the Office of the Prosecutor (OTP) treated the receipt of the envelope
that contained suspects’ names and the accompanying evidence compiled by the Waki
Commission not as constituting a referral but rather as a mere communication calling
for a proprio motu investigation. The Waki Commission had made it clear (supra
Sect. 3.4.4) that if circumstances so dictated, its evidence would be transmitted to the
ICC Prosecutor for him to “analyze its seriousness” and decide if he should com-
mence investigations and prosecution. From the wording of this recommendation, it is
clear that the Commission contemplated making a “communication” and rather than a
(self) referral. In any case, on account of Kenya’s foreign policy and practice regard-
ing international treaties, it is inconceivable that the Waki Commission would have
been able to make a “self-referral” on behalf of the Kenyan government.22 Thus, the
Prosecutor rightly treated the transmission of the envelope and the accompanying
materials as a communication just like 30 other communications he had received by
November 2009 in respect of Kenya.23 However, as the following sections reveal, the
Prosecutor would have been glad if indeed Kenya had made a self-referral.
6.2.3 Responses of ICC Prosecutor and Kenyan Government

to Trigger Mechanism
The Kenyan government and the OTP had different preferences as regards the trig-
ger mechanism. This was among the fundamental issues which seemed to affect
the interests of each side. On the one hand, the Prosecutor thought that a proprio
motu investigation was not the most convenient trigger mechanism for the OTP. He
therefore wanted to avoid it at any cost. On the other hand, although the Kenyan
government had failed to institute domestic proceedings, it would not easily let the
ICC process ensue. But when it eventually became evident that the ICC’s interven-
tion was unstoppable, the Kenyan government battled with the dilemma whether it
should make a self-referral or let the agreed proprio motu route take its course.
6.2.3.1 Prosecutor’s Preference for Self-referral
There is no doubt that the then ICC Prosecutor Moreno-Ocampo was aware that a
proprio motu investigation was the route recommended in the mediation process and
that it had been endorsed by the Principals in the Kenyan coalition government.24
22 InKenya, the powers to ratify international treaties (and thus, to officially transact on behalf
of Kenya with respect to issues pertaining to Kenya’s rights and obligations under such treaties)
reside exclusively with the Executive. See infra Sect. 6.6.3.2.
23 See Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15,
Situation in the Republic of Kenya (ICC-01/09-3), 26 November 2009, p. 3.

24 See, e.g. OTP’s statement in relation to events in Kenya. http://www.icc-cpi.
int/NR/rdonlyres/1BB89202-16AE-4D95-ABBB-4597C416045D/0/ICCOTPST20080205ENG
.pdf. Accessed August 2014. See also “ICC Prosecutor reaffirms that the situation in Kenya is
monitored by his office”. http://www.icc-cpi.int/NR/rdonlyres/06455318-783E-403B-8C9F-8E20
56720C15/279793/KenyaOTPpubliccommunication20090211.pdf. Accessed August 2014.
However, he embarked on a “strategy” to avoid the proprio motu route and lobby for
a self-referral. For example, in a meeting held on 3 July 2009 between the Prosecutor
and the Kenyan government, Ocampo “manipulated” the Kenyan government into
signing an undertaking to make a self-referral.25 Here, a question arises as to why the
Prosecutor wanted to avoid the proprio motu route in favour of a self-referral? Two
main factors must have informed Prosecutor’s preference. These are the prosecutorial
policy of his Office and the negative perception about the work of the ICC in Africa.
6.2.3.1.1 ICC’s Prosecutorial Policy
The prosecutorial policy adopted by the OTP from early days clearly encourages
self-referrals more than the other forms of referral apparently on account of the
advantages the former offers. A self-referral of a situation may guarantee more
cooperation from the referring state as regards the facilitation of investigations,
arrest and surrender of suspects (if necessary), witness protection, etc.26
This policy echoes the controversy that surrounded the idea of proprio motu inves-
tigations at the Rome Conference for the adoption of the ICC Statute. According to the
travaux préparatoires, while many states strongly supported state referrals, the idea of
vesting the Prosecutor with proprio motu powers was very contentious. On the one
hand, a group of so-called “like-minded states” favoured a powerful and independent
Prosecutor with absolute prosecutorial discretion. On the other hand, another group of
states argued that “excessive” powers would be prone to abuse by the Prosecutor. The
second group feared that such an abuse would curtail a widespread acceptance of the
Statute, or impair the willingness of States Parties to cooperate with the Court.27
Given this contention, a compromise had to be reached. Consequently, although pro-
prio motu powers were eventually included in Article 15 of the Statute, the Prosecutor
can only invoke such powers after having been authorized by the Pre-Trial Chamber.28
Therefore, in order to minimize or avoid criticism and to maximize coopera-
tion, rightly, the OTP, through the prosecutorial policy, rightly made proprio motu
investigations the least of its priorities.
6.2.3.1.2 Negative Perception About the ICC in Africa
The second reason for the Prosecutor’s preference of a self-referral in relation to

Kenya may have been the strained relationship between the ICC and Africa as a
25 See ICC Office of the Prosecutor 2009, p. 2; UN General Assembly 2009, para 49.
26 SeeOffice of the Prosecutor 2006, pp. 2, 7; International Criminal Court 2003c. See also
Ambos 2007, pp. 55–68; Cote 2012, pp. 408–410.
27 See Bergsmo and Pejic 2008a, pp. 581–585; Schabas 2011, pp. 176–182 (noting, at p. 177,
that there was fear that the position of the prosecutor “might be occupied by an NGO-friendly
litigator with an attitude”); William 2008, pp. 343–349. On the role of NGOs in the adoption of
the ICC Statute, see Ellis 2011, pp. 146–148; Struett 2008.
28 Ambos 2007, pp. 55–56; Schabas 2011, p. 178; Decision on the Authorization of an
Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 18.
regional bloc. Negative perceptions had emerged in Africa about the ICC’s activi-
ties in the continent, especially after the issuing of warrants of arrest against
President Omar Al-Bashir of Sudan. The ICC had already been accused by the
African Union (AU) of being a biased institution, “hunting” or targeting only
Africans, while perpetrators of similar crimes from Europe, America and allied
countries are not targeted even where there is clear evidence against them.29
A strong counter-argument is usually given in response to the foregoing percep-
tion. The argument is that in the instances where African states invite the ICC vol-
untarily, i.e. through self-referrals, to intervene into crimes committed in their
territories, the claim that the ICC is targeting African states cannot be sustained.30
The Prosecutor was aware that this specific argument would not apply to proprio
motu investigations, hence his preference for a self referral from Kenya. On the
one hand, a self-referral would have lent more political legitimacy to the ICC’s
intervention, both at the domestic and international level, by creating the impres-
sion that it was Kenya itself which invited the ICC “voluntarily”. On the other
hand, the Prosecutor seems to have feared that a proprio motu intervention would
create more “antagonism” between the ICC on one side and the AU and Kenyan
government on the other. The Prosecutor must also have feared that such antago-
nism would consequently impair Kenya’s voluntariness or readiness to cooperate
with his Office. Given that Kenya was the first case in which proprio motu powers
would be exercised, the Prosecutor had foreseen a mammoth challenge of having
to justify why he only chose Kenya for proprio motu intervention and not any of
the other similar situations which had been under preliminary investigations over a
considerable period of time even prior to Kenya’s post-election violence.31
Thus, it was not a surprise that Ocampo tried to promote a self-referral from
Kenya. In fact, this was not his first time to do so. In the first two situations before
the ICC, namely those of Uganda and the DRC, the Prosecutor had been success-
ful in “encouraging” the respective governments to make self-referrals, although
he had also received a number of calls for the initiation of proprio motu investiga-
tions.32 He achieved his aim in the Uganda and the DRC situations despite the
criticisms that his conduct elicited.33
29 See, e.g., Cote 2012, pp. 411–412; Hansen 2013. See Jalloh 2012b, pp. 203 et seq.;
NewAfrican 2012, pp. 10–29 (NB. This entails a collection of articles taking a clearly biased
perspective (against the ICC) on the work of the Court in Africa); Murungu 2011, pp. 1067
et seq.; Mills 2012, pp. 404 et seq.; Murithi 2012, pp. 4–9, Murithi 2013; Villa-Vicencio 2011,
pp. 38–41; Werle et al. 2014. For more details see infra Sect. 6.7.4.
30 Cf. Ambos 2013, pp. 499 et seq.; Keppler 2011, pp. 1–14; Sriram 2009, pp. 320 et seq.
31 See International Criminal Court 2011. By the end of December 2013, for instance, the
OTP had received a total of 10,470 requests for proprio motu investigations. See ICC-OTP,
“Preliminary Examinations” http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20
court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20
and%20referrals.aspx. Accessed September 2014.
32 See Muller and Stegmiller 2010, p. 1271.
33 This has, e.g., been described as a “ridiculous love of self-referrals”. See Heller 2011.
6.2.3.2 Why Did the Prosecutor Fail to Secure Self-Referral?
Despite his attempt, the Prosecutor could not secure a self-referral from Kenya for
obvious reasons. It is noteworthy that in all the self-referrals made so far the pri-
mary motivation of the referring governments has been the crimes committed by
rebel groups or government opponents.34 However, the situation in Kenya was
completely different: there were no rebels as such. Thus, although, as indicated
above, the Kenyan government had agreed with the Prosecutor that it would make
a self-referral if it failed to institute domestic proceedings, Kenya was not ready to
honour this undertaking at the time it was expected to do so. The argument which
emerged was that Kenya was unprepared to relinquish its sovereign right to inves-
tigate and try its own nationals.35
It is true that no functional state would agree easily to waive its sovereignty over
its own nationals through a simple agreement with another state or with a prosecutor
of a foreign tribunal. The existence of several bilateral (impunity?) agreements
between the USA and other states to ensure that no citizen of the USA will be
arraigned before the ICC attests to this fact.36 Notwithstanding the sovereignty argu-
ment, the Kenyan government’s reluctance to make a self-referral was influenced
more by the prevailing circumstances in Kenya’s domestic politics at that particular
time. The Kenyan government was, at that time, a coalition between two parties (see
supra Sect. 3.3). Both parties to the coalition, the PNU and the ODM, had clearly
been implicated in the crimes associated with the post-election violence. It would
have been ironical to expect them to “invite” the ICC through a self-referral to inves-
tigate and prosecute the alleged crimes, given that up to the time such a self-referral
was being sought, the leaders of the coalition government were not aware as to who
would be arraigned before the ICC. This being the case, even on political grounds, a
self-referral would have been counter-productive from Kenyan government’s point of
view: It could have indeed been tantamount to inviting serious trouble to oneself.37
6.3 Issues Relating to Parameters of ICC’s Investigation
Usually, the ICC Prosecutor’s investigation into any situation is confined to territo-
rial, temporal and material parameters. The investigation authorized by the Pre-
Trial Chamber was confined to the territory of Kenya, since the alleged crimes did
not have cross-border character or effect.38 There are no concerns or issues arising
34 Cf. Akhavan 2005, p. 403 et seq.; Schiff 2008, pp. 198–199.
35 See Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19
of the ICC Statute, Ruto, Kosgey and Sang (ICC-01/09-02/11-26), PTC, 31 March 2011, para 3.
36 On this see generally Bantekas 2010, pp. 439–440; Hafner 2005, pp. 323 et seq.
37 Cf. Brown and Sriram 2012, pp. 244 et seq.
38 Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, Situation in
the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 50.

in this regard. However, with respect to the temporal and material parameters of
the authorized investigation, a few specific legal issues that need more clarification
and critical evaluation arise.
6.3.1 Temporal Scope of Investigation
6.3.1.1 Prosecutor’s Intention to Conduct Open-Ended Investigation
In the request for authorization of an investigation, the Prosecutor stated that the
crimes which occurred in Kenya were “not limited to the time period between 27
December 2007 [and] 28 February 2008”.39 However, in the remedy part of his
request, the Prosecutor asked the Pre-Trial Chamber to authorize an investigation
“in relation to the post-election violence of 2007–2008”.40 In addition, the
Prosecutor based his request on the findings of 11 “reliable” reports, most of
which focused exclusively on the “alleged crimes committed during the post elec-
tion violence”.41
The wording of the Prosecutor’s request, as shown above, entails two possible
interpretations regarding the temporal scope of the investigation envisioned by the
Prosecutor. Both interpretations lead to the conclusion that the Prosecutor envi-
sioned an open-ended investigation that would stretch beyond the 2-month period
of active violence.
6.3.1.1.1 First Interpretation of Prosecutor’s Request
One interpretation is that the Prosecutor intended not only to focus on the crimes
committed during the post-election violence, but also on any criminal conduct
incidental to the violence, namely atrocities which happened outside the 2-month
time frame, but which nonetheless had a direct nexus with the 2007 general elec-
tions. Pursuant to this interpretation, Prosecutor’s proprio motu investigation
would clearly have covered the planning, organization and incitement to commit
violence which had started even before the election date. Crimes committed prior
to the election date, such as the murder of 70 people and displacement of 2,000
others during the campaign period,42 would have been covered. Also, the investi-
gation would have covered crimes committed after the official “ceasefire” agree-
ment of 28 February 2008, but which crimes could have a retrospective nexus with
the elections.
39 Ibid., para 93.

40 Ibid., para 114.
41 Ibid., para 3.
42 See Kenya National Commission on Human Rights 2007, p. 6.
6.3 Issues Relating to Parameters of ICC’s Investigation 187
6.3.1.1.2 Second Interpretation of Prosecutor’s Request
The second interpretation of Prosecutor’s request begins from the premise that the
main trigger of the ICC’s intervention in Kenya was the crimes associated with
the 2007–2008 post-election violence. However, there could also have been other
atrocities committed in Kenya which might not have had any clear nexus with the
2007 elections, but which could nevertheless be crimes falling under the jurisdic-
tion of the ICC.
Certainly, the second interpretation is broader than the first. It would view
the post-election violence only as a “door way” through which the ICC entered
Kenya. It thus would have enabled the ICC to adopt a holistic approach to the
fight against impunity in Kenya by also investigating other atrocities which had
not been prosecuted domestically. As will be shown shortly (infra Sect. 6.3.3), the
serious crimes alleged to have been committed in Mount Elgon district would have
fallen under this scope.
6.3.1.2 Victims’ Views
A close look at the views of the victims reveals that they embraced both interpreta-
tions above. Most of the victims wanted a broadly defined temporal scope of
investigations, stretching beyond the officially defined 2-month time frame for the
post-election violence. Individual victims wanted redress for other past atrocities,
irrespective of whether the particular atrocities had occurred in the context of the
2007 elections. For instance, victims variously wanted the investigations to span
diverse periods, such as (i) 6 months before and after the elections; (ii) the cam-
paigning period, during election and after election; (iii) from February 2007 “dur-
ing the establishment and training of militia groups”; (iv) from 2006 to 2008, “as
the violence was pre-planned” (v) from 2005 during the constitutional referendum
“when the incitement started”; (vi) after February 2008, “because some crimes
continue to be perpetrated to date”; (vii) since 1992 onwards; (viii) up to March
and April 2008, etc.43
6.3.1.3 Pre-Trial Chamber’s Decision
The Pre-Trial Chamber noted by a majority that it could not be established clearly
from Prosecutor’s submission whether he wanted the investigation to be confined
to the 2-month period of violence or to go beyond this time frame. However, con-
sidering the views of the victims, among other factors, the Chamber confined the
temporal scope of the investigation to “the events that took place between 1 June
43 Corrigendum to the Report on Victims’ Representations and Annexes 1 and 5, Situation in the
Republic of Kenya (ICC-01/09-17-Corr-Red), PTC, 29 March 2010, paras 95–105.

2005 (i.e., the date of the Statute’s entry into force for the Republic of Kenya) and
26 November 2009 (i.e., the date of the filing of the Prosecutor’s Request)”.44
Furthermore, the Chamber was of the view that confining the investigation to the
2-month time frame would have been “inconsistent with (i) the purpose behind
investigating an entire situation as opposed to subjectively selected crimes and (ii)
the Prosecutor’s duty to establish the truth by extending the investigation to cover
all facts and evidence pursuant to article 54(1) of the Statute”.45
6.3.1.4 Evaluation
The decision to fix 26 November 2009 as the end date for the investigation was
based on Pre-Trial Chamber’s understanding of Article 53(1)(a) of the ICC Statute.
This Article requires that a proprio motu investigation can be authorized if the
available information shows that a crime within the jurisdiction of the Court “has
been or is being committed”. The Pre-Trial Chamber found that this particular pro-
vision prohibits authorization of an open-ended investigation. The Chamber stated:
It would be erroneous to leave open the temporal scope of this investigation to include
events subsequent to the date of the Prosecutor’s Request. Article 53(1)(a) of the Statute,
by referring to “a crime [which] has been or is being committed” makes clear that the
authorization to investigate may only cover those crimes that have occurred up until the
time of the filing of the Prosecutor’s Request.46
6.3.1.4.1 Pre-Trial Chamber’s Interpretation Questioned
The Chamber’s interpretation of Article 53(1)(a) implied that whenever a p roprio

motu investigation is authorized, its temporal scope must always be sealed. It fur-
ther appears that in setting an end date to the investigation, rather than leaving
it completely open-ended, the Chamber wanted to achieve certainty as regards
the scope of Prosecutor’s investigation. However, concerns have emerged
about the practicability of this interpretation. What is particularly questioned is
whether the contention that it is “erroneous” for the temporal scope of a proprio
motu investigation “to include events subsequent to the date of the Prosecutor’s
request” for authorization of investigation is the most correct and practicable inter-
pretation of Article 53(1)(a).
Rastan opines that promotion of this interpretation will generally have negative
implications on proprio motu investigations, contending that it will arguably affect
all future Article 15 decisions. He further contends that such an interpretation will
not be practicable in respect of all proprio motu investigations, more specifically
44 Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-
01/09-19), PTC, 31 March 2010, para 205.

45 Ibid. (emphasis added).
46 Ibid., para 206 (emphasis added).
those initiated in respect of ongoing crimes. According to him, this interpretation

implies that whenever authorization for initiation of proprio motu investigations is
requested with respect to a situation where the commission of crimes is still going
on, several requests will have to be made serially or sequentially, i.e. each time a
need arises to investigate events subsequent to the end date originally fixed, the
Prosecutor must again submit a request for fresh authorization of a “new or
extended investigation”. Rastan acknowledges that requesting for a new or
extended investigation in this regard is possible under the Statute, but he rightly
notes that it is “impracticable”, and that it entails “unnecessary restrictions” of the
powers of the Prosecutor to investigate.47
Interestingly, the Prosecutor did not bother to contend the Pre-Trial Chamber’s
demarcation of an end date to the scope of the investigation authorized. This indif-
ference seems to have stemmed from the fact that the demarcation of an end date
per se would not have had any negative impact on Prosecution’s case in the two
Kenyan cases. There is no express or implied indication that the Prosecutor had
intended to extend his investigations even close to 26 November 2009 (the date
of his request for authorization of investigation), as he did not include any inci-
dent beyond 28 February 2008 in the charges against the six suspects. As such,
the Prosecutor may have chosen not to contend the demarcation of an end date
not necessarily because he agreed to the Pre-Trial Chamber’s interpretation of
Article 53(1)(a), but merely because such a demarcation did not have any limit-
ing effect on the investigation of incidents or crimes he had resolved to investigate
and charge. Thus, if the commission of the crimes had transcended the date of his
request to commence an investigation, it is most likely that the Prosecutor would
have contended the Chamber’s reasoning.
6.3.1.4.2 Is Pre-Trial Chamber’s Reasoning Convincing?
The phrase a crime “is being committed” in Article 53(1)(a) refers to ongoing
crimes. It is not entirely convincing to argue, as the Pre-Trial Chamber did, that
generally a proprio motu investigation should be authorized in respect of crimes
committed subsequent to the date of Prosecutor’s request for authorization thereof.
Such an argument is particularly problematic because the phrase “a crime is being
committed” not only suggests that there could be continuity in the commission of
the crime or crimes in question, but also that there could be a link between the
crimes already committed, those being committed at the date of Prosecutor’s
request and those which might be committed subsequent to that date. The Pre-
Trial Chamber’s reasoning overlooks such possibilities and will definitely not be
practicable in all scenarios.
Experience from the other situations before the ICC, especially those that have
resulted from state self-referrals and Security Council referrals, reveals that the
Prosecutor’s investigations have never been sealed. It is noteworthy that even in
47 Rastan 2011, pp. 434–437.

cases where no crimes continued to be committed after referral of the situation, the
practice, and apparently, the interest of the OTP has always been to keep the inves-
tigations open-ended.48 This has been Prosecutor’s discretion over which the Pre-
Trial Chamber has not exercised control, for it does not have any. The question is
whether there is any justification for such a control with regard to proprio motu
referrals.
The negotiators of the ICC Statute were, for various reasons, overly cautious
about an “all powerful prosecutor” to the extent that States Parties to the ICC
Statute did not want to grant excessive powers to the Prosecutor with regard to
proprio motu investigations, and that in order to control such powers, they agreed
to subject the exercise of proprio motu powers to the judicial control of the Pre-
Trial Chamber (see supra Sect. 6.2.3.1.1). So, one needs to find out whether by
extension those drafters also wanted the Chamber to exercise strict judicial con-
trol with regard to temporal scope of investigations commenced proprio motu. An
affirmative answer to this question would then justify the demarcation of an end
date as per the Pre-Trial Chamber’s reasoning.
Neither the available commentaries on Articles 15 and 53 nor the travaux pré-
paratoires suggest anything to that effect.49 Instead, literature shows that the man-
ner in which the States Parties wanted to limit the temporal scope of investigations
(jurisdiction ratione temporis), regardless of the type of trigger mechanism used,
was strictly with regard to clearly demarcating the date in respect of which the
investigation commences. This is clear under Articles 11(2) and 12(3) of the ICC
Statute. These provisions clearly designate the date of entry into force of the
Statute for a particular State, or the date on which such State accepts the jurisdic-
tion of the ICC voluntarily, as the case may be, to be the dates prior to which,
strictly speaking, the Prosecutor cannot investigate. And in any case, the
Prosecutor cannot investigate any crimes prior to the date of entry into force of the
Statute, which is 1 July 2002.50
Thus, Pre-Trial Chamber II’s reasoning that the ICC Statute requires that the
date of Prosecutor’s request must always be set as an end date for a proprio motu
investigation is not entirely correct. However, for the reasons started above, as
flawed as it may be, this decision will not have any effect on the two cases so far
derived from the Kenyan situation. In addition, this flawed reasoning may not nec-
essarily “affect all future” proprio motu situations as Rastan contends. Practice
shows that rather than relying on previous decisions mechanically, the various
48 E.g. the situation in the Central African Republic was referred to the ICC in 2005 following
an attempted coup, and only one person, Jen-Pierre Bemba, was subsequently indicted in 2008.
However, the Prosecutor left the investigations open-ended. Seven years later, in March 2013,
when another coup happened, the Prosecutor issued a statement reminding the warring groups
that still the ICC had jurisdiction on the basis of the 2005 referral. See Prosecutor’s Statement in
relation to Central African Republic, 22 March 2013 http://www.icc-cpi.int/en_menus/icc/struc-
ture%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/
statement/Pages/otp-statement-CAR-22-03-2013.aspx. Accessed August 2014.
49 See, e.g. Bergsmo and Kruger 2008, pp. 1065–1076.
Chambers of the ICC do consider each situation before them on a case-by-case

basis. And in any case, the ICC is not bound by precedent.51
In fact, the reasoning of the Pre-Trial Chamber II in the Kenyan cases in this
very aspect was departed from shortly later by the Pre-Trial Chamber III in yet
another request for proprio motu investigation, the Cote d’Ivoire situation. In the
latter case, the Prosecutor, apparently having been influenced by the “precedent”
in the Kenya situation, requested the Chamber to authorize an investigation into
the Cote d’Ivoire situation “up to the date of filing of the request”. However, dis-
tinguishing the decision of Pre-Trial Chamber II in the Kenya situation, the Pre-
Trial Chamber III declined to fix an end date for the investigation as requested by
the Prosecutor for practical reasons. The Chamber underscored the importance of
considering the context of each situation, rightly noting that in the context of the
Cote d’Ivoire situation, it was of paramount importance to ensure that:
Any grant of authorisation covers investigations into “continuing crimes”—those whose com-
mission extends past the date of the application. Thus, crimes that may be committed after the
date of the Prosecutor’s application will be covered by any authorisation, insofar as the con-
textual elements of the continuing crimes are the same as for those committed prior to [the
date of the filing of Prosecutors Request]. They must, at least in a broad sense, involve the
same actors and have been committed within the context of either the same attacks (crimes
against humanity) or the same conflict (war crimes). Therefore if the authorisation is granted,
it will include the investigation of any ongoing and continuing crimes that may be committed
after [the date of the filing of Prosecutor’s request] as part of the ongoing situation.52
Therefore, as it stands now, there are two positions emanating from the Pre-Trial
Chamber with regard to the demarcation of an end date for proprio motu inves-
tigations. One position was set in the Kenya situation and the other position in
the Cote d’Ivoire situation. The position set in the Cote d’Ivoire situation is more
convincing and practicable. However, it remains to be seen which position will be
taken by the Appeals Chamber if a need arises, especially by determining what “an
ongoing situation” precisely entails with reference to a proprio motu investigation.
6.3.2 Subject-Matter Jurisdiction
Subject-matter jurisdiction determines which crimes are to be investigated or pros-

ecuted. The victims of Kenya’s post-election violence argued that all types of

52 Decision on the Authorisation of an Investigation, Situation in the Republic of Cote D'ivoire
(ICC-02/11-14), PTC, 3 October 2011, para 179. This is in line with a ruling of the Pre-Trial
Chamber in the DRC situation, which noted that a single situation “can include not only crimes
that had already been or were being committed at the time of the referral, but also crimes com-
mitted after that time, insofar as they are sufficiently linked to the situation of crisis referred to
the Court as ongoing at the time of the referral”. See Under Seal Decision on the Prosecutor’s
Application for a Warrant of Arrest against Callixte Mbarushimana, Situation in the DRC (ICC-
01/04-01/10-1), PTC, 28 September 2010, para 6.
violations of their rights should be investigated.53 On his part, the Prosecutor sub-
mitted that the available information revealed that only crimes against humanity
had been committed. However, he stated that this submission was “without preju-
dice to other possible crimes within the jurisdiction of the Court which may be
identified during the course of an investigation”.54 It appears that by referring to
“other possible crimes”, the Prosecutor did not want to completely rule out war
crimes and genocide, which other sources claimed that had been committed or at
least attempted in Kenya.
Eventually, the Pre-Trial Chamber authorized the Prosecutor to investigate only
crimes against humanity.55 This, however, did not per se preclude the Prosecutor
from subsequently asking the Chamber to broaden the scope of the investigation to
include the other crimes in case there are facts pointing to their commission.56
6.3.3 Locating Crimes in Mount Elgon Area

in the Investigation
There was another wave of violence in Kenya’s Mount Elgon district that existed
almost independently of the post-election violence.57 In view of the temporal and
material scope of the investigation authorized by the Pre-Trial Chamber, the crimes
associated with this particular violence could be and should have been addressed by
the Prosecutor. Despite the fact that most of the crimes associated with this specific
violence are not wholly part of the defined time frame of the post-election violence,
they nevertheless fall within the temporal scope of the investigation authorized by
the Chamber. In addition, the nature, magnitude and gravity of the crimes commit-
ted during this violence warrant its special consideration.
6.3.3.1 Origins of Violence in Mount Elgon
The violence started in 2006, being a reaction to a three-phase resettlement pro-

gramme implemented by the Kenyan government in Mount Elgon district between
1968 and 2005. The Sabot, a pastoralist ethnic community residing in the area,
opposed the fact that their land was being allocated to the people of other
53 Corrigendum to the Report on Victims’ Representations and Annexes 1 and 5, Situation in the
Republic of Kenya (ICC-01/09-17-Corr-Red), 29 March 2010, paras 109–113.

54 Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, Situation in
the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 93.

01/09-19), PTC, 31 March 2010, para 209.

57 See also Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. III,
pp. 39–80. See also supra Sect. 3.4.3.3.

communities resettled in the area. In 2002, the Sabot Land Defence Force (hereaf-
ter “Sabot militia”) was formed with a view to defending the Saboti land. From
2006, the militia, resisting phase III of the resettlement programme, launched
attacks targeting those who, among other things, opposed its cause.58 Heinous
crimes were allegedly committed both by the Sabot militia and the Kenyan secu-
rity forces which, in 2008, carried out an operation, operation Okoa Maisha (Save
Lives), a “deadly” military campaign against the militia.59
6.3.3.2 Gravity and Nature of Resulting Crimes
It is alleged that the Sabot militia killed more than 600 civilians, displaced
between 66,000 and 200,000 others, and that it forcibly recruited about 650 child
soldiers, mostly boys. It is further alleged that its members abducted, raped, muti-
lated and tortured many victims; destroyed property; and looted livestock.60
Similarly, it is alleged that during the operation Okoa Maisha, the Kenyan security
forces committed serious atrocities, as they arbitrarily arrested almost all men and
boys as young as 10 years old, and “screened” them in a nearby military camp.
The screening exercise, which Human Rights Watch describes as “systematic tor-
ture”, resulted in serious bodily injuries and many deaths.61 It has further been
alleged that by July 2008, the Kenyan security forces had caused about 220
enforced disappearances, besides raping women and burning houses and property
belonging to the suspected members of the Sabot militia.62
Both Human Rights Watch and the Kenya National Commission on Human
Rights have concluded that both the Sabot militia and Kenyan security forces vio-
lated international human rights law and humanitarian law, specifically the Geneva
Conventions of 1949.63 It has even been claimed that from 2006 to 2008 the Sabot
militia was “in effective control” of the Mount Elgon district, because “there was no
government in that area”.64 Further documentation suggests that, just like the
Kenyan security forces, the structure of the Sabot militia entailed a defined hierar-
chical chain of command. Accordingly, it is has been argued that the doctrine of
command responsibility could also apply in dealing with the crimes of the militia.65
58 Human Rights Watch 2008, pp. 11–14.

59 Ibid., pp. 27–28. See also generally Kenya National Commission on Human Rights 2008a;
United Nations Development Programme 2009.
61 See Kenya National Human Rights Commission 2008b, pp. 23–87 (documenting the medical
reports of 26 victims, including pictures showing severe bodily injuries).

62 Human Rights Watch 2008, pp. 27–34; Human Rights Watch 2011.
64 Ibid., p. 19.
65 Ibid., p. 15. See also Kenya National Commission on Human Rights 2008a, p. 20.
After the end of the operation Okoa Maisha, about 700 members of the Sabot
militia were charged domestically under the Kenyan Geneva Conventions Act with
the crime of promoting “war-like activities”.66 However, the crimes alleged to have
been committed by the Kenyan security forces were not prosecuted.67 Prospects of
their being investigated and prosecuted domestically remain very slim.
The allegation that war crimes were committed is serious, but cannot be ade-
quately scrutinized here to establish if all the legal requirements for such crimes
could actually be established. However, as the Kenyan Truth, Justice and
Reconciliation Commission also concluded, the nature of the crimes committed
indicates that there could be a reasonable basis to believe that crimes against
humanity were indeed committed.68
Most of the atrocities in Mount Elgon were not committed in connection with
Kenya’s 2007 elections. However, there is no doubt that these crimes clearly fall
within the jurisdiction of the ICC given the broader temporal and material scope of
investigations as authorized by the Pre-Trial Chamber into Kenya. It is noteworthy
that, when authorizing the investigation, the Chamber referred to the violence in
Mount Elgon by passing, but the crimes committed in this area are conspicuously
missing in the charges subsequently brought before the ICC. This deliberate
“omission” seems to have been influenced by the Prosecutor’s express statement
that the primary reason for his proprio motu intervention in Kenya was to deter
future crimes associated with election violence.69 Hence, the atrocities committed
in Mount Elgon remains one of the areas in which the prosecutorial discretion
failed to meet the legitimate expectations of victims of serious crimes in Kenya.
6.4 Issues Relating to Substantive Criminal Law
There are two main issues of substantive law arising from the pre-trial phase of the
Kenya situation that merit critical analysis. The first issue relates to the characteri-
zation of the facts in the charges. The second issue relates to the contention arising
from the definition of crimes against humanity.

67 Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, p. 68 (specifically
see Annex 1, theme/subject no. 16).
68 See Ibid., para 133.
69 See Ocampo's statement on Kenya [video], published on You Tube by NTV Kenya, 1 April
2012 http://www.youtube.com/watch?v=Pg4jxfsXT98. Viewed September 2014.

6.4 Issues Relating to Substantive Criminal Law 195
6.4.1 Prosecutorial Discretion Vis-a-Vis Scope of Charges
The indictment in the two Kenyan cases encompassed a total of five individual
acts charged as crimes against humanity contrary to Article 7 of the ICC Statute.70
The acts charged are only those with a direct nexus to the post-election violence,
namely murder; deportation or forcible transfer of population; persecution; rape
and other forms of sexual violence; and other inhumane acts.71 However, a conten-
tion emerged during the pre-trial proceedings as to how property crimes should
have been characterized in the indictment. The main issue was whether, consider-
ing the circumstances in which they were committed, such crimes should have
been characterized as “persecution”; or as “deportation or forcible transfer of pop-
ulation”; or as “other inhumane acts”.
6.4.1.1 Characterization of Crimes Relating to Property
The charge, by either design or oversight, treated the property crimes of looting
and destruction of property differently in the two cases.
In the case of Ruto, Kosgey and Sang, the Prosecution argued that these acts con-
stituted the crime against humanity of “deportation or forcible transfer of population”
contrary to Article 7(1)(d) of the ICC Statute. Accordingly, the Prosecutor alleged that
these acts were committed by the “Network Perpetrators” (see infra Sect. 6.4.2.2.1.1)
in order to “permanently expel PNU supporters from the Rift Valley”.72 However, in
the second case, Muthaura, Kenyatta and Ali, the Prosecution argued that the looting
and destruction of property allegedly committed by “the Mungiki Perpetrators” (see
infra Sect. 6.4.2.2.1.2) constituted the crime of “other inhumane acts” under Article
7(1)(k) of the ICC Statute. Accordingly, the Prosecutor submitted that these acts and
several others affected the “physical and mental health” of the victims.73
6.4.1.1.1 Victims’ Arguments
A total of 327 victims indicated that they had suffered theft, looting or destruction of
their property during the post-election violence. They raised a concern that the
70 See Document Containing Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-257-
AnxA), PTC, 19 August 2011, pp. 38–43; Document Containing Charges, Ruto, Kosgey and
Sang (ICC-01/09-01/11-261-AnxA), PTC, 15 August 2011, pp. 35–38.
71 See Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-
382-Red), PTC, 23 January 2012, paras 231–280; Decision on the Confirmation of Charges,
Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, paras 223–281.
72 Document Containing Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-261-AnxA), PTC,
15 August 2011, paras 37 and 101.

382-Red), PTC, 23 January 2012, para 268–269.

charges brought by the Prosecutor “did not indicate clearly and expressly” whether
they would actually cover such property crimes. In particular, the common victims’
representative argued that in both cases, the Prosecution had characterized the facts
in relation to property crimes erroneously. In her view, under the ICC Statute, prop-
erty crimes committed in Kenya were neither “other inhumane acts” nor “deportation
or forcible transfer of population” as characterized in the charges. Rather, the she
submitted that these acts constituted a crime against humanity of “persecution” under
Article 7(1)(h) of the ICC Statute. Thus, the victims asked the Pre-Trial Chamber to
advise the Prosecutor to consider amending the charges accordingly, since the error
would adversely affect their individual interests at the end of the trial.74
6.4.1.1.2 Reasoning and Decision of Pre-Trial Chamber
In the case of Ruto, Kosgey and Sang, the Pre-Trial Chamber approved of the
Prosecutor’s approach. It ruled that the acts of looting, theft and destruction of
property were correctly characterized in the charging document as constituting
“deportation or forcible transfer of population” under Article 7(1)(d). The crime of
“deportation or forcible transfer of population” is defined as “forcible displace-
ment of the persons concerned by expulsion or other coercive acts from the area in
which they are lawfully present, without grounds permitted under international
law”.75 Pursuant to this definition, the Chamber endorsed the Prosecutor’s argu-
ment that the acts of burning and looting of property belonging to PNU supporters
in Rift Valley could amount to “coercive acts”, because they appeared to have been
committed with the intention to force such supporters to vacate the area.
Accordingly, the charges were confirmed as framed.76
However, in Muthaura, Kenyatta and Ali, the Pre-Trial Chamber found that
there was a mistake in the manner in which the Prosecutor characterized the facts
relating to property crimes. The Chamber rejected Prosecutor’s characterization of
facts which had suggested that the looting and destruction of property belonging to
the ODM supporters constituted “other inhumane acts”. In particular, the evidence
produced by the Prosecutor was insufficient to persuade the Chamber that such
conduct met the definitional requirements of “inhumane acts” under Article 7(1)
(k) of the Statute. The Chamber noted that the crime of “other inhumane acts”,
being a “catch-all” category of crimes against humanity, can only cover conduct
which is not covered by the preceding paras a to j of Article 7(1). But for such
conduct to qualify as “inhumane acts” under the provision, the acts must, inter
alia, be capable of “causing great suffering or serious injury to body or mental or
74 See e.g., Request by the Victims’ Representative for Authorisation by the Chamber to Make
Written Submissions on Specific Issues of Law and/or Fact, Ruto, Kosgey and Sang (01/09-
01/11-263), PTC, 15 August 2011.
75 ICC Statute, Article 7(2)(d) (emphasis added).
PTC, 23 January 2012, para 277.

physical health”. Applying this standard, the Chamber rejected the Prosecution’s
characterization, stating that while the Prosecution had succeeded in showing that
such property crimes had actually occurred, it had failed to establish the manda-
tory link between these acts and “serious injury to body or mental health”.77
Finally, the Chamber also rejected the victims’ views that the proceedings
should be adjourned so that the Prosecutor could be requested to amend the
charges accordingly. The Chamber noted that in characterizing the facts, however
wrongly, the Prosecutor had exercised his prosecutorial discretion. Ultimately, the
Chamber concluded that to request for an amendment “would mean to go beyond
the factual ambit of the charges, and would therefore be tantamount to requesting
the Prosecutor to consider adding a new charge”.78
6.4.1.1.3 Evaluation
Certainly, the Prosecutor exercised his prosecutorial discretion in framing the

charges the way he did with respect to property crimes committed during the post-
election violence. However, the fact that property crimes were confirmed in the
first case and rejected in the second case will potentially entail different implica-
tions for the victims in the two cases.
At the trial stage of a case before the ICC, the Trial Chamber can only adjudi-
cate on charges that have been confirmed by the Pre-Trial Chamber at the end of
the pre-trial stage. This is the reason why, for example, Article 61(9) of the ICC
Statute provides that if, after confirmation of charges decision and before trial
begins, the Prosecutor feels that there is a need to amend the confirmed charges
by, for example, adding more charges or substituting more serious charges, a sepa-
rate confirmation of charges hearing must be conducted in respect of the additional
or substituted charges. It is only when these new charges are also confirmed that
they can be adjudicated upon by the Trial Chamber, the reason being that during
the trial stage, the Trial Chamber cannot “exceed the facts and circumstances
described in the charges and amendment to the charges”.79
In addition, the Regulations of the Court only allow the Trial Chamber to
“change the legal characterisation of facts to accord with the crimes under Articles
6, 7 or 8”, but strictly speaking, this must “not exceed the facts and circumstances
described in the charges and any amendments to the charges”.80 In fact, the
Appeals Chamber has stated clearly that such re-characterization “must not exceed
382-Red), PTC, 23 January 2012, para 279.

78 Ibid., para 286.
80 Regulation 55 of the Regulations of the Court as amended, ICC-BD/01-02-07.
the factual circumstances that were identified in the confirmation decision as sup-
porting each of the legal elements of the crimes charged”.81
The implication of the foregoing paragraph is that in Muthaura, Kenyatta and
Ali, the facts relating to acts of destruction and looting of property, which the Pre-
Trial Chamber declined to confirm, can no longer be part of the charges to be adju-
dicated upon during trial. As a result the victims, who expressed their wish to seek
remedy against such acts will no longer be able to claim individual reparation for
these acts in case of a conviction. On the other hand, the victims of similar crimes
in Ruto, Kosgey and Sang will have the property crimes adjudicated upon during
trial, because these crimes will remain part of the charges. Thus, the victims in the
second case will have the opportunity to claim and be granted reparations for the
personal loss they incurred in this regard in line with the ICC reparation principles
which have been adopted recently in the Lubanga case. According to these princi-
ples, “economic harm”, such as “loss of, or damage to, property”, can be compen-
sated, provided the harm is sufficiently quantifiable.82
The above-mentioned mistake regarding characterization of facts in the
Muthaura, Kenyatta and Ali case could have been rectified, and thereby miti-
gate the “injustice” which could occur to the victims of the acts in question.
Rather than outrightly declining to confirm the wrongly characterized facts, the
Chamber should have, pursuant to Article 61(7) of the Statute, and as proposed
by the victims’ representative, considered requesting the Prosecutor to re-charac-
terize the facts correctly. Article 61(7) provides that during the confirmation of
charges hearing, the Pre-Trial Chamber has three mandates. It can (i) confirm the
charges wholly or partly; or (ii) decline to confirm all or part of the charges; or
(iii) propose or advise an amendment of a charge which would not have other-
wise been confirmed so that it can be confirmed. Particularly, on the third man-
date, Article 61(7)(c)(ii) further provides that the Chamber “shall adjourn the
hearing and request the Prosecutor to consider amending a charge because the
evidence submitted appears to establish a different crime within the jurisdiction
of the Court”. It appears that such amendment may also rectify a wrong charac-
terization or labelling of facts. Moreover, the use of the word “shall” may, in this
case, be taken to imply that an adjournment is mandatory. Accordingly, whenever
the Pre-Trial Chamber notices that certain facts have been wrongly characterized
in the charges and that on the basis of such a mistake the facts are unlikely to be
81 Judgment pursuant to Article 74 of the ICC Statute, Lubanga (ICC-01/04-01/06-2842),
TC, 14 March 2012, para 7. See also Judgment on the appeals of Mr. Lubanga Dyilo and the
Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving
notice to the parties and participants that the legal characterisation of the facts may be subject
to change in accordance with Regulation 55(2) of the Regulations of the Court”, Lubanga (ICC-
01/04-01/06-2205), AC, 8 December 2009; Judgment on the appeal of Germain Katanga against
the decision of Trial Chamber II of 21 November 2012 entitled “Decision on the implementation
of regulation 55 of the Regulations of the Court and severing the charges against the accused per-
sons”, Katanga (ICC-01/04-01/07 OA 13), AC, 27 March 2013.
82 Decision Establishing the Principles and Procedures to be Applied to Reparations, Lubanga
(ICC-01/04-01/06-2904), TC, 7 August 2012, paras 226–230; Moffett 2012, pp. 1 et seq.
confirmed unless they are re-characterized, then the Chamber should not simply
decline to confirm such facts before advising the Prosecutor to consider amending
the charge.
It is submitted that while the Pre-Trial Chamber’s reasoning is partly correct in
that the Prosecutor had the discretion to frame the charges as he deemed fit, two
aspects of its decision are questionable regarding what should have been the cor-
rect application of Article 61(7)(c)(ii) of the ICC Statute. Firstly, taken plainly, the
wording of Article 61(7)(c)(ii), which allows for re-characterization of facts,
retains the prosecutorial discretion as it provides that the Pre-Trial Chamber will
only “request” the Prosecutor “to consider” amending a charge. This means that
even if he had been requested to do so, the Prosecutor would not have been obli-
gated to act as per the request of the Chamber.83 Here, one must draw a distinction
from the controversy that emerged from the Lubanga case in which the Pre-Trial
Chamber “usurped” the prosecutorial powers and purported to re-classify the
charges suo motu (in its own initiative) instead of requesting the Prosecutor to do
so. This tendency was reversed by the Appeals Chamber.84 Secondly, the count
entailing property crimes was already part of the indictment, except that the facts
had been wrongly characterized as constituting “other inhumane acts” instead of
“deportation or forcible transfer of population” and “persecution”, which were
also contained in the indictment.85 Thus, contrary to what the Pre-Trial Chamber
suggested, had an amendment to the charge been requested and effected, the result
would not have been tantamount to adding a “new charge”.
Therefore, the failure to provide an opportunity for the amendment of the
charges with respect to property crimes in Muthaura, Kenyatta and Ali case was
an oversight on the part of the Pre-Trial Chamber. This is despite the fact that it
still remains unclear if the Prosecutor would in fact have considered re-character-
izing the facts had he been requested to do so. The Prosecutor himself did not take
any initiative to have the facts re-characterized so that they could be adjudicated
83 Stahn 2009, p. 255 (noting that this is one of the areas where “Judges are allowed to exercise
scrutiny, but are not meant to replace prosecutorial judgment for reasons of institutional inde-
pendence”). See generally Schabas 2009, pp. 227–246.
84 The Prosecutor had charged Lubanga with enlistment, conscription and active use of child
soldiers being crimes committed in the context of an internal armed conflict under Article 8(2)
(e)(vii) of the ICC Statute. This charge was confirmed. However, the Pre-Trial Chamber argued,
having made suo motu assessment, that the crimes were also committed in the context of an
international armed conflict under Article 8(2)(xxvi) of the ICC Statute. It then proceeded to also
confirm the charges in this regard. The Prosecutor successfully appealed against the confirma-
tion of charges for war crimes in the context of an international armed conflict which he had not
presented, arguing that it was an imposition of an additional burden of proof on the Prosecution’s
case. See Decision on the Prosecution and Defence Applications for Leave to Appeal the
Decision on the Confirmation of Charges, Lubanga (ICC-01/04-01/06-915), PTC, 24 May 2007.
See also Schabas and Shibahara 2008, pp. 1179–1180.
85 Cf. Renewed Request by Victims’ Representative for Authorization by the Chamber to Make
Written Submissions on Specific Issues of law and/or Fact, Ruto, Kosgey and Sang (ICC-01/09-
01/11-333), PTC, 16 September 2011, para 19.
upon during trial.86 This shows clearly that the Prosecutor became indifferent
about the legitimate concerns of the victims. This indifference gives rise to the
question whether, in view of the ICC’s unique procedure allowing victims’ repre-
sentation, the OTP should always view issues of victims’ welfare as an entire
responsibility of the victims’ representative, or whether such issues should also be
viewed as an integral part (a concern) of the Prosecution’s case.
6.4.2 Whether Acts Committed During Post-Election Violence

Amounted to Crimes Against Humanity
6.4.2.1 Introductory Note
Although the definitions of crimes against humanity under customary international

law and under the ICC Statute have many similar elements, the two are not
entirely the same. In view of this fact, even before the ICC intervened in Kenya,
the Kenya National Commission on Human Rights had already contended that the
crimes committed during the post-election violence might not qualify as crimes
against humanity under the ICC Statute, although they obviously did qualify as
such under international customary law.87 This contention per se touches on a cru-
cial question of substantive law which must be examined. The reason is that in
view of Article 21 of the ICC Statute, the ICC can try only crimes whose elements
meet the definitional criteria set out in its Statute. Indeed there are many overlaps
between the ICC Statute and international customary criminal law that make the
two not mutually exclusive. However, as Cassese notes, in some aspects, the ICC
Statute is either broader or narrower than the customary law.88 For that reason, in
terms of substantive law, the ICC enforces international customary law only to the
extent the latter is reflected in the ICC Statute.
One area in which the ICC Statute differs slightly from international custom-
ary law is in relation to the definition of crimes against humanity. In view of such
difference, a disagreement emerged as to whether crimes against humanity under
the ICC Statute occurred during the post-election violence in Kenya, or whether
what happened could only qualify as crimes against humanity under international
customary law. Legally speaking, therefore, the ICC would not have jurisdiction
over the criminal acts committed in Kenya if such acts did not meet the criteria for
crimes against humanity under the ICC Statute.
The said disagreement gained prominence when the judges who sat in the pre-
trial proceedings of the Kenya situation expressed divergent opinions on the mat-
ter. The disagreement permeated the entire pre-trial phase, clearly manifesting
86 The Prosecutor could have, for example, requested for an adjournment or could have appealed
against the Pre-Trial Chamber’s decision on the matter.

87 Kenya National Commission on Human Rights 2008b, paras 638–648.
88 Cassese 2008, p. 123.
itself in three important Pre-Trial Chamber’s decisions. It emerged for the first
time in the decision on the authorization of an investigation. It then recurred in the
decisions relating to both issuance of summonses to appear and the confirmation
of charges. The main bone of contention was on the contextual requirements of
crimes against humanity as provided for in the ICC Statute.
Before outlining and evaluating the disagreement at length, the following sec-
tion will first outline the definition of crimes against humanity with a view to giv-
ing a clear perspective to the subsequent discussion.
6.4.2.2 Outline of the Definition of Crimes Against Humanity
The definition of crimes against humanity in the Statute constitutes the material
elements of the crime, namely any of the 11 categories of individual acts (actus
reus) listed under Article 7(1)a–k89 of the Statute “when committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack”.90 Furthermore, “an attack directed against a civilian
population” entails “a course of conduct involving the multiple commission of acts
referred to in [Article 7(1)] against any civilian population, pursuant to or in fur-
therance of a State or Organizational policy to commit such attack”.91
Put more precisely, the above definition contains four main cumulative criteria,
also known as the “contextual elements”, under which the material elements (indi-
vidual acts) constituting the crime must occur if the individual acts are to qualify
as “crimes against humanity” under the Statute. These elements are that: (i) the
acts must be part of a widespread or systematic attack92; (ii) the attack must be
directed against any civilian population93; (iii) the perpetrator must have the
knowledge of the attack94; and (iv) the attack must be pursuant to or in furtherance
of a policy of a State or an organization.
89 These are: murder; extermination; enslavement; deportation or transfer of population; impris-
onment or other severe deprivation of physical liberty in violation of fundamental rules of inter-
national law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity; persecution against an
identifiable group or a collectivity on political, racial, national, ethnic, cultural, religious, gender
or other grounds; enforced disappearances; the crime of apartheid; and other inhumane acts of
a similar character intentionally causing great suffering, or serious injury to body or mental or
physical health.
90 See ICC Statute, chapeau of Article 7.
91 Ibid., Article 7(2)(a).
92 For more details see Boot et al. 2008, pp. 176–180; Werle 2009, pp. 296–299.
93 For details see Decision on the Confirmation of Charges, Bemba (ICC-01/05-01/08-424),
PTC, 15 June 2009, paras 75–81; Boot et al. 2008, pp. 180–181; Werle 2009, pp. 296–299.
94 For details see Boot et al. 2008, pp. 181–183.
6.4.2.3 “State or Organizational Policy”: A Source of Disagreement
There was no any disagreement among the judges of the Pre-Trial Chamber as regards
the existence of the first three contextual elements in the definition of crimes against
humanity identified above in relation to the criminal acts committed during the post-
election violence in Kenya. However, the question whether the fourth element, namely
a “State or organizational policy”, was present, created a sharp division not only
among the judges, but also between the parties to the cases as well as among scholars.
On the one hand, a two-judge majority of the Pre-Trial Chamber, constituted by Judges
Ekaterina Trendafilova and Cuno Tarfusser, maintained that the acts could qualify as
crimes against humanity under the Statute, for they satisfied all the contextual ele-
ments. On the other hand, Judge Hans-Peter Kaul maintained that the acts would not
qualify as such. He expressed a “fundamental disagreement” with the majority, argu-
ing that the acts were not committed pursuant to or in furtherance of a policy of State
or an organization.95 Hence, while the majority affirmed that the ICC had jurisdiction
ratione materiae over the Kenya situation in general and the two cases in particular,
the minority’s view was that the ICC lacked such jurisdiction under the ICC Statute.96
6.4.2.3.1 Prosecutor’s Submission
In each of the two cases, the Prosecution maintained that the crimes had been com-
mitted pursuant to an “organizational policy”. There was no any explicit allegation
that there was a State policy per se to commit crimes, although the Prosecution tried
to link individual officials in the government and State agencies, such as the police,
to the organizational policy of private entities such as the Mungiki.97 Building its
case on organizational policy, the Prosecution argued as follows:
6.4.2.3.1.1 The Network as an “Organization”

In the Ruto, Kosgey and Sang case, the Prosecution submitted that the alleged crimes
were committed by “the Network”, an “organization” which was allegedly in support
of the Orange Democratic Movement (ODM) party. This “organization” was allegedly
linked to the Kalenjins, having been created already in December 2006.98 Furthermore,
it was submitted that the Network had five identifiable components, namely political,
95 Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of
an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010,

para 36.
96 See generally Hansen 2011, pp. 1 et seq; Jalloh 2011, pp. 540 et seq.; Kress 2010, pp. 855
et seq.; Werle and Burghardt 2012, pp. 1151 et seq.

97 See Document Containing Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-257-
AnxA), PTC, 19 August 2011, paras 36 and 46–48.

15 August 2011, paras 65–66.

media, financial, tribal and military components, which acted interdependently during
the post-election violence to implement a policy. The objective of the policy under
implementation was allegedly twofold: (i) “to punish and expel from the Rift Valley”
the civilians from the ethnic groups perceived to be supporters of the Party of National
Unity (PNU); and (ii) “to gain power and create a uniform ODM voting bloc”.99
As to the structure of the Network, the Prosecution alleged that William Ruto and
Henry Kosgey were not only the organization’s top political leaders, but also acted
as its main sponsors and mobilizers. Joshua Arap Sang allegedly headed the media
component of the Network, and, as such, he was responsible for spreading propa-
ganda, hate speech and incitement through the Kalenjin radio station KASS FM.100
It was further alleged that the military component of the Network had a defined
chain of command, William Ruto being its ultimate supreme commander. Reporting
directly to the supreme commander were allegedly three commanders (generals) in
charge of one of the three different “military zones” created in Rift Valley. Each
zonal commander was allegedly in charge of subordinates, mainly tribal and local
leaders. It was these tribal and local leaders who allegedly mobilized the direct per-
petrators (mainly youths), facilitated training, provided weapons and guidance on
how the attacks should be implemented.101
6.4.2.3.1.2 The Mungiki as an “Organization”

In the Muthaura, Kenyatta and Ali case, the Prosecution argued that the crimes
were committed under the auspices of the Mungiki, an organization that was acting
in support of the PNU. It was submitted that this organization implemented an
“organizational policy”, namely “to keep the PNU in power through every means
necessary, including by orchestrating a police failure to prevent the commission of
crimes”. The policy was allegedly implemented through a common plan to attack
ODM supporters “by (i) penalizing them through retaliatory attacks; and (ii) delib-
erately failing to take action to prevent or stop the retaliatory attacks”.102
In terms of its organizational structure, the Prosecutor alleged that the Mungiki
was hierarchically organized, with a known national leadership over which
Mr. Kenyatta “had control … due to his wealth and privileged background”.103
It was further alleged that the Mungiki had local and regional branches whose lead-
ership had executive and judicial powers, and that it also had a political wing called
99 Ibid., para 41; Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-
01/11-373), PTC, 23 January 2012, paras 181–182.
15 August 2011, paras 45–54.

101 Ibid., paras 57–64.
102 Document Containing Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-257-AnxA),
PTC, 19 August 2011, para 35.

the “Kenya National Youth Alliance” and a quasi-military wing known as the
“Mungiki Defence Council”.104
It was the prosecution’s case that the logistical, material and moral support
from the six suspects in each respective case, facilitated by the hierarchical struc-
tures of the two entities, the Mungiki and the Network “organizations” acquired
the capacity to organize and implement attacks. The prosecution concluded that
these organizations actually utilized that capacity and launched attacks on civilian
populations pursuant to and in furtherance of their respective policies.
6.4.2.3.2 Defence Submission: There Were No “Organizations”
The defence teams persistently refuted the submissions by the prosecution on the
policy element in the definition of crimes against humanity. Their main arguments
revolved around one point: the Prosecutor had failed to establish “even a reasona-
ble basis to believe” that there was the existence of an “organization” which was
capable of adopting an “organizational policy”. Consequently, the defence argued
that there were no crimes against humanity committed in Kenya and, as a result,
the ICC lacked jurisdiction over the Kenya situation.105
In their submission the defence teams banked on the arguments raised in
the dissenting opinions of Judge Hans-Peter Kaul. Notably, when Judge Kaul
expressed his dissenting opinion for the first time in response to Prosecutor’s
request for authorization of an investigation, the defence teams had not been
constituted, neither had any suspect been identified yet. This being the case, it is
doubtful whether the meaning of “organization” as used in the Statute would have
become so controversial had Judge Kaul not stirred the debate in the first place.
Subsequent to the first dissenting opinion of Judge Kaul, the defence teams clev-
erly picked his arguments with a view to capitalizing on the fundamental divide
already noticed in the Pre-Trial Chamber.
For that reason, and in order to avoid repetition, the core of the defence’s argu-
ment regarding “organizational policy” should further be inferred from Judge
Kaul’s opinion outlined below (infra Sect. 6.4.2.3.4).
104 Ibid., paras 40–41.

105 Specifically see Ruto and Sang’s Defence Challenge to Jurisdiction, Ruto, Kosgey and
Sang (ICC-01/09-01/11-305), PTC, 30 August 2011; Application on behalf of Henry Kiprono
Kosgey Pursuant to 119 of the ICC Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-306),
PTC, 30 August 2011; Submissions on Jurisdiction on Behalf of Uhuru Kenyatta, Muthaura,
Kenyatta and Ali (ICC-01/09-02/11-339), PTC, 19 September 2011; Ali’s Defence Challenge
to Jurisdiction, Admissibility and Prosecution’s Failure to Meet the Requirements of Article 54,
Muthaura, Kenyatta and Ali (ICC-01/09-02/11-338), PTC, 19 September 2011, For counter argu-
ments by the Prosecutor see Prosecution’s Response to the Defence Challenges to Jurisdiction,
Ruto, Kosgey and Sang (ICC-01/09-01/11-334), PTC, 16 September 2011.
6.4.2.3.3 Pre-Trial Chamber’s Majority Opinion
The majority (two judges) of the Pre-Trial Chamber agreed with the Prosecutor’s
submissions regarding organizational policy. The two judges stated expressly that
they were in favour of a broad interpretation of Article 7(2)(a) of the ICC Statute,
such that both the Mungiki and the Network would indeed qualify as “organiza-
tions” under that provision.106 The majority enumerated six factors which they
insisted “may assist” in determining whether a certain group or entity qualifies as an
“organization” capable of authoring a policy. These factors are whether the entity:
(i) is under a responsible command, or has an established hierarchy; (ii) possesses, in fact,
the means to carry out a widespread or systematic attack against a civilian population; (iii)
exercises control over part of the territory; (iv) has criminal activities against the civilian
population as a primary purpose; (v) articulates explicitly or implicitly an intention to
attack a civilian population; and (vi) is part of a larger group, which fulfils some or all of
the above-mentioned criteria.107
Furthermore, the majority insisted that the factors enumerated above do not consti-
tute a rigid legal definition, nor must they always be fulfilled exhaustively. Rather, an
independent determination and assessment about the nature of the entity has to be
made on a case-by-case basis. Moreover, they noted that the decisive criterion of
whether a group qualifies as an organization should not be its “formal nature” or even
“the level of its organization”. The criterion, according to them, should be the group’s
“capability to perform acts which infringe on basic human values”. Consequently, the
majority concluded that an organization envisioned by Article 7(2)(a) must not neces-
sarily be linked to a state, nor must it be a state-like entity.108
The majority added that Article 7(2)(a) of the ICC Statute envisions (i) policies
of states which may be adopted at the highest level or by regional or even local
organs (of the State); or (ii) policies of any non-state actor capable of adopting and
implementing a policy to commit widespread or systematic attacks against a civil-
ian population.109 They noted that the policy envisaged under Article 7(2)(a) must
not necessarily be formal or written: It suffices if the policy can, as the case was in
Kenya, be deduced or inferred from an attack that exhibits the characteristics of
being “planned, directed or organized, as opposed to spontaneous or (consisting
107 Ibid., para 185; Decision on the Authorization of an Investigation, Situation in the Republic
of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 93.

01/09-19), PTC, 31 March 2010, paras 89–92.

109 Ibid., paras 89–90 and 92.
of) isolated acts”.110 Thus, the majority were of the view that in each of the two
Kenyan cases a policy to attack a civilian population could be established.111
6.4.2.3.4 Dissenting Opinion of Judge Kaul
In his dissenting opinion, Judge Hans-Peter Kaul expounded his “fundamen-

tal disagreement” with the majority with regard to how the word “organization”
in the definition of crimes against humanity should have been construed. While
the majority favoured a “broad” or non-restrictive interpretation, Judge Kaul
argued that the word should have been interpreted more narrowly or restrictively.
Accordingly, Article 7(2)(a) of the Statute should have been viewed as envisaging
not just any organization but only State-like organizations, of which neither the
Mungiki nor the alleged Network would qualify.
The dissenting Judge agreed with the majority opinion that an “organization” is
fundamentally different from a “State”, and that the former can include non-state
entities. He also agreed with them that a policy can be simply inferred and need not
be formalized.112 However, he disagreed with the majority as regards the attributes of
the organization or entity that can author such a policy. He argued that the mere juxta-
position of the notions of “State” and “organization” under Article 7(2)(a) suggests
that the “organization” contemplated by that provision must have one specific attrib-
ute: it must “partake of some characteristics of a State”. As such, it must be an entity
which “may act like a State or has quasi-State abilities”.113 Such characteristics or
abilities, according to Judge Kaul, could include, but are not limited to, the following:
(a) a collectivity of persons; (b) which was established and acts for a common purpose; (c)
over a prolonged period of time; (d) which is under a responsible command or adopted a
certain degree of hierarchical structure, including, as a minimum level, some kind of a pol-
icy; (e) with capacity to impose the policy on its members and to sanction them; and (f)
which has the capacity and means…to attack any civilian population on a large scale.114
111 Note, however, that in Ruto et al. the majority found that there was only one policy, namely
“to punish and expel from the Rift Valley those perceived to support PNU”. The alleged second
policy, namely “to gain power and create a uniform ODM voting bloc” was rejected for not being
a policy in itself but rather a motive of a policy. See Ibid., paras 209–221.
112 Judge Kaul noted in particular: “I agree with the majority that the policy, if not formally
adopted, may be deduced from a variety of factors which, taken altogether, militate in favour
of a policy, involving ways and means for the common purpose to attack a civilian population”.
See Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of
para 41.
113 Ibid., para 51.
114 Ibid. See also Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the
Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012,
para 18.
The dissenting judge also listed the characteristics that in his view make certain
groups not to qualify as “organizations” within the meaning of Article 7(2)(a) of
the Statute. In other words, these entities or groups are not “State-like”. These are:
groups of organized crime, a mob, groups of (armed) civilians or criminal gangs…[such
as those] formed on an ad hoc basis, randomly, spontaneously, for a passing occasion,
with fluctuating membership, and without a structure and level to set up a policy [do not
qualify], even if they engage in numerous serious and organized crimes.115
Applying the above understanding, Judge Kaul concluded that the features of the
Mungiki and the Network, as alleged by the Prosecutor, simply placed the two
groups in the category of “organized armed criminal gangs”, and not organizations
within the meaning of Article 7(2)(a). He thus flawed the majority decision for
holding that the two groups qualified as “organizations”. He stated that the major-
ity set a bad precedent which, if not reversed, will have far-reaching implications,
such as rendering the ICC an incredible institution that usurps the jurisdiction of
the domestic courts over “ordinary serious crimes”. To Judge Kaul, the criminal
acts that were committed in Kenya during the post-election violence were
undoubtedly serious but strictly “ordinary” criminality under the Kenyan domestic
laws and cannot be elevated to the status of crimes under international law, par-
ticularly “crimes against humanity” under the ICC Statute.116
Judge Kaul expressed the view that a restrictive interpretation of the word
“organization” is important when applying Article 7(2)(a), in order to avoid a
“banalisation” or “trivialization” of the crimes that the ICC is meant to handle.117
Finally, the judge concluded that the ICC was not the right forum to investigate
and prosecute the crimes in Kenya, for it lacked jurisdiction.
6.4.2.4 Evaluation
6.4.2.4.1 Policy Element in Crimes Against Humanity
Four major approaches to the policy element in crimes against humanity can be
identified so far. These approaches are that crimes against humanity: (1) do not
require a policy at all; (2) require a state policy for their commission; (3) require a
115 Ibid.,
para 18. See also Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision
on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-
Corr), PTC, 31 March 2010, para 52.
116 Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Confirmation
of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-382-Red), PTC, 23 January 2012,

paras 19–21; See also Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the
Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC,
31 March 2010, para 10.

para 55.
policy of either a state or a state-like organization; (4) require a policy of a state or

any organization (not necessarily state-like), provided such organization has the
capacity to carry out widespread attacks against a civilian population.118 Whereas
the first two approaches feature more prominently in the jurisprudence of the ad
hoc tribunals, the latter two approaches dominate the debate on the ICC Statute as
the foregoing discussion has already shown.
However, there is no dispute that the explicit requirement of a policy as part of
the legal requirements for crimes against humanity came with the ICC Statute.119
A policy was not, for example, an express requirement in the definitions in the IMT
Charter or in the statutes of the ad hoc Tribunals or even those of the hybrid
courts.120 This notwithstanding, the question whether a policy was required for
crimes against humanity still emerged in the jurisprudence of the ad hoc Tribunals,
always stirring a heated debate. Initially, some scholars, as well as the early judicial
pronouncements of the Tribunals, maintained that a policy was an implicit require-
ment under the customary law definition of crimes against humanity.121 Others,
however, contested this position, arguing that proof of a policy or plan had no rele-
vance in the customary law definition of crimes against humanity.122 After several
inconsistencies in the pronouncements of the Tribunals, especially the ICTY, it
came to be agreed that the existence of a policy was merely a demonstration of the
systematic character of an attack directed against a civilian population. As to its
legal status, the ICTY’s Appeals Chamber settled the controversy by ruling that for
the customary law definition of crimes against humanity, “the existence of a policy
or plan may be evidentially relevant, but it is not a legal element of the crime”.123
Therefore, the extent to which the jurisprudence of the ad hoc Tribunals on policy
element is relevant to the application of the ICC Statute must be taken cautiously.
Indeed the ICC Statute made a radical shift from the position under international cus-
tomary law applied by the Tribunals on this issue. It follows that the jurisprudence on
“State or organizational policy” as a legal requirement for crimes against humanity
is in its infancy, and evolving. Its shape will be defined largely by the ICC. In this
regard, there are several issues which are yet to be completely settled at the ICC.
118 See Cupido 2011; Robinson 2011a.

119 See Chella 2004, p. 185; DeGuzman 2000, p. 368.
120 See the definitions of crimes against humanity under Articles 6(c), 3 and 5 of the IMT
Charter, ICTR Statute and ICTY Statute, respectively. Generally see Badar 2004, pp. 73–144.
121 See, e.g. Judgment, Kayishema and Ruzindana (ICTR-95-1-T), 21 May 1999, para 124;
see also Opinion and Judgment, Tadic (IT-94-1-T), 7 May 1997. At para 644, the ICTY’s Trial
Chamber confirmed that for there to be an attack directed against any civilian population under
the ICTY Statute, the attack must be committed pursuant to “some form of a governmental,
organizational or group policy to commit these acts”. Further, The Chamber clarified, at para
655, that “although a policy must exist to commit these acts, it need not be the policy of a State”.
For greater detail see Badar 2004, pp. 113–114; Robinson 1999, pp. 43 et seq.
122 Cupido 2011; Mettraux 2002, pp. 281–282.
123 See Judgment, Kunarac, Kovac and Vukovic (IT-96-23/1–A), 12 June 2002, para 98; Badar
2004, p. 113; Chella 2004, p. 187; Footnote 334.

One such issue is whether a “State or organizational policy” in the ICC Statute
is an independent contextual element for crimes against humanity, or whether it is
simply an indicator of a systematic attack.124 Regarding this issue, the Pre-Trial
Chamber III stated in the Bemba case that “the existence of a State or organisa-
tional policy is an element from which the systematic nature of an attack may be
inferred”.125 However, when the Prosecutor adopted this line of reasoning in the
request for authorization of an investigation into Kenya,126 the Pre-Trial Chamber
II, in a unanimous decision, adopted a slightly different position: It decided that an
organizational policy is a separate contextual element independent of a systematic
attack.127 Interestingly, two of the Pre-Trial judges in the Kenya situation,
Trendafilova and Kaul, were present in the bench for the Bemba case.
Another issue which is yet to be completely settled is the one that divided the Pre-
Trial Chamber judges in the Kenyan cases, i.e. the meaning of “organization” in the
definition of crimes against humanity in the ICC Statute. In the Bemba case, Judge
Kaul agreed with the other two judges that an “organization” under Article 7(2)(a) of
the ICC Statute can be “any organization with the capability to commit a widespread
or systematic attack against a civilian population”.128 Yet when the Prosecutor
adopted this line of reasoning before the Pre-Trial Chamber in the Kenya situation,
only the majority, excluding Judge Kaul, upheld the reasoning of the Chamber in
Bemba. Kaul no longer aligned himself with that reasoning, arguing that the mean-
ing of “organization” that was adopted in the Bemba decision was apparently too
broad. He thus wrote his dissenting opinion in favour of “State-like organizations”.
Justifying a change of the position he had previously endorsed in Bemba, Judge Kaul
said that the Bemba case concerned “military-like organized groups in the context of
an armed conflict” while the Kenyan scenario was of a different context.129
6.4.2.4.2 Key Factors Towards Interpretation of “Organization”
6.4.2.4.2.1 Article 21 of the ICC Statute

Article 21 of the ICC Statute contains a hierarchical order of law applicable before
the ICC, which is a self-contained legal regime.130 It provides that the ICC “shall
124 Hansen 2011, p. 9; May 2010.

125 Decision on the Prosecutor’s Application for an Arrest Warrant, Bemba (ICC-01/05-01/08-
14-tENG), PTC, 17 July 2008, para 33.
126 See Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15,
Situation in the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 79.
(ICC-01/09-19), PTC, 31 March 2010, para 93.

128 See Decision on the Confirmation of Charges, Bemba (ICC-01/05-01/08-424), PTC, 15 June
2009, para 81 (emphasis added).

(ICC-01/09-19), PTC, 31 March 2010, para 48. See also Hansen 2011, p. 13, Footnote 57.
130 See Werle and Burghardt 2012, p. 1154.
apply” (i) the ICC Statute itself, Elements of Crimes, and its Rules of Procedure
and Evidence; (ii) applicable treaties and the principles and rules of international
law, including those of armed conflict; (iii) principles derived from national laws
of legal systems that would normally try the crimes in the ICC Statute, provided
they are consistent with the laws listed in i and ii above; and (iv) principles and
rules created in previous decisions of the ICC (precedents). As a common denomi-
nator, it the Statute requires that any law applied according to the order above
must be, inter alia, consistent with internationally recognized human rights.131
6.4.2.4.2.2 Other Factors to Consider

Being a treaty, the ICC Statute must be interpreted according to the Vienna
Convention on the Law of Treaties.132 The Convention requires, inter alia, that
when interpreting a treaty, its terms must, first and foremost, be given their “ordi-
nary meanings”, unless there are justifiable reasons not to do so.133 In this regard,
it is noteworthy that although the word “organization” is not defined in the Statute
or in the Elements of Crimes,134 resort could be taken to dictionaries. The Black’s
Law Dictionary defines “organization” as “a body of persons (such as a union or
corporation)”.135 Non-legal dictionaries define it more broadly. For example,
according to the Shorter Oxford English Dictionary, contextually, the verb “organ-
ize”, from which the noun “organization” is derived, means to “form into a whole
with mutually connected and dependant parts; give a definite or orderly structure
to [something]; frame and put into working order (an institution, enterprise, etc.);
arrange (something involving united action); become a systematic whole; become
coordinated; attain orderly structure or working order”. Accordingly, the noun
“organization” is defined as “an organized body, system or society”.136
131 For further details see DeGuzman 2008, pp. 702–712.

132 Adopted on 23 May 1969 and entered into force on 27 January 1980. Cf. Dissenting Opinion
of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation,
Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, paras 33–70.
133 There are only three circumstances (exceptions) under which the ordinary meaning can be
dispensed with. These are (i) when the ordinary meaning would defeat the object and purpose of
the treaty (Article 31(1)); (ii) when it is clear that the parties to the treaty intended to give a “spe-
cial meaning” to a term over and above its ordinary meaning (Article 31(4)); and (iii) when the
ordinary meaning would lead to ambiguity, obscurity, absurdity or unreasonableness. In the latter
case, the travaux préparatoires can be consulted as a “supplementary means of interpretation” to
resolve the problem (Article 32). A comparable approach is followed in the common law legal
tradition. See, e.g., Costello 2006; Hall 1998, pp. 38 et seq.; Scott 2010, p. 346.
134 See Elements of Crimes http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-
AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf. Accessed September 2014. The Elements
are an aid to the interpretation and application of the crimes in the Statute. See ICC Statute
Article 9.
135 Garner 1999, p. 1126.
136 Stevenson 2007, p. 2033.
6.4.2.4.2.3 Observation
The word “organization” as used in Article 7(2)(a) is not a term of art. It is thus impor-
tant to give it its ordinary meaning, but which is nevertheless consistent with the main
intent and purpose of the States Parties to the ICC Statute. As Werle and Burghardt
rightly observe, neither the ordinary meaning of the word “organization” nor the
grammatical context of the phrase “State or organizational policy” in which the word
has been used supports the conclusion that the word envisioned a state-like entity.
They further rightly note that the disjunctive “or” juxtaposes “state” and “organiza-
tion” as equals. Thus, it is grammatically incorrect to infer from the formulation “State
or organizational policy” that the “organization” must share the definitional character-
istics of a “state” such that the former is necessarily a “state-like” organization.137
An analogy could also be drawn from the chapeau of the Article 7(1) of the
ICC Statute. This provision defines a crime against humanity as a “widespread or
systematic” attack on a civilian population. Here, too, the disjunctive “or” has
always been understood to indicate that the attack can either be widespread or sys-
tematic, and more importantly, a systematic attack need not share the characteris-
tics of a widespread attack. Hence, the two attributes of the attack and could exist
independently of each other.138
This leads to the conclusion that even on grammatical grounds, the minority’s
interpretation of the word “organization” cannot stand.
6.4.2.4.3 Teleological Approach of the Dissenting Opinion
At another level, in his dissenting opinion, Judge Kaul Judge attempted to give a
“teleological” justification of his restrictive interpretation of the word “organiza-
tion”. His main arguments revolved around four points, but which were followed
by contradicting conclusions.
6.4.2.4.3.1 Main Arguments
Firstly, Judge Kaul noted that the earliest definition of crimes against humanity in
the IMT Charter was adopted to respond to the crimes committed by the Nazis dur-
ing the Second World War.139 As he rightly noted, from the context in which the
Nazi crimes happened, the acts were indisputably mass atrocities committed by a
“sovereign state against the civilian population … according to a State plan or pol-
icy, involving large segments of the State”.140 Secondly, he argued that subsequent
137 See Werle and Burghardt 2012, pp. 1154–1156.

138 Cf. Werle 2009, pp. 297–299.
139 Cf. Schabas 2008, p. 974.

para 59.
to the Nazi crimes experience, crimes against humanity committed in other parts of
the world again proved that crimes of such nature and magnitude were possible
only “by virtue of an existing State policy”. Thirdly, he asserted that by expressly
including “State policy” as part of the definition of crimes against humanity, the
ICC Statute clearly “embraces” all the historic considerations referred to above.141
Fourthly, and more importantly, he admitted the fact that, despite the historical role
of the State in the commission of crimes against humanity, the definition of the
crime under Article 7(2)(a) of the ICC Statute focuses beyond that role mainly for
one reason: “to accommodate new scenarios of threats” which, although might not
have links to a state, “may equally shake the very foundations of the international
community and deeply shock the conscience of humanity”.142
The notion of “new threats”, as referred to by Judge Kaul, was given consideration
for the first time by the International Law Commission (ILC) in its 1996 Draft Code of
Offenses against the Peace and Security of Mankind.143 The ILC proposed an express
inclusion of “State or organizational” policy in the definition of crimes against human-
ity as a response to “new developments after Nuremberg”.144 In this regard, therefore,
the ICL recognized the dynamic nature of crimes against humanity (i.e. its form and
manner of commission) from when they were defined for the first time in history.
6.4.2.4.3.2 Weaknesses and Contradictions

Despite acknowledging the important facts above, especially the emergence of
“new threats”, it is difficult to comprehend why the dissenting Judge came to the
assertion that only the “historic origins are decisive in understanding the specific
nature and fundamental rationale of this category of international crimes”.145 This
assertion further led him to a flawed conclusion that in interpreting the policy ele-
ment in the ICC Statute, absolute reliance should be placed on the “historic experi-
ence”, which, he argued, is the only “logical lesson” that influenced the drafters
when adopting the definition of crimes against humanity in the ICC Statute.146
141 Ibid., para 66.

142 Ibid.
143 For origins and mandate of the ICL see Schiff 2008, pp. 26–27 and 38; Bassiouni 1987,
pp. 3–11.
144 The ILC Draft Code of Offenses against the Peace and Security of Mankind of 1996 proposed
that for individual acts to qualify as crimes against humanity, they should be committed contextu-
ally in a systematic manner or on a large scale “directed by a Government or by any organization
or group.” See Article 18 of the Draft Code. Although at the Rome conference the word a “group”
was dropped and the rest of the wording retained, the ILC’s commentary on the provision stated
clearly that the definition was intended “to take into account subsequent developments in interna-
tional law since Nurnberg.” See UN International Law Commission 1996, p. 47.

para 65 (emphasis added).
146 Ibid., para 60–64.
Of course, Judge Kaul is not alone: his views on “state-like organizations” reso-
nate with those of prominent scholars.147 However, such views sharply contradict
those of other prominent scholars.148 But these divergent views aside, Judge Kaul’s
approach contains intrinsic contradictions which make it flawed. Kaul’s reasoning is
internally inconsistent, for it partly disregards the “new threats” that the judge
expressly acknowledges to have kept emerging even after the experience of the Nazi
criminality. His approach exhibits too much obsession with the definitions of crimes
against humanity prior to the inception of the ICC Statute to the point of overlooking
the need for a dynamic interpretation and application of the ICC Statute.149 This
(dynamic interpretation) should have been an important consideration, given the fact
that the crime itself and the techniques of committing it are equally dynamic.
147 See, e.g. Bassiouni 1992, pp. 248–249 (arguing that “crimes against humanity” are collective
crimes which cannot be committed unless they are part of a given state’s policy because their
commission requires the use of the state’s institutions, personnel and resources in order to com-
mit, or refrain from preventing the commission of, the specific crimes described in Article 6(c)
[of the IMT Charter]…. The rationale for this requisite of “state action or policy” is that “crimes
against humanity,” like other international crimes such as genocide and apartheid, cannot be
committed without it because of the nature and scale of the crime”); Schabas 2008, pp. 972–974.
For more literature in support of the restrictive interpretation see Dissenting Opinion of Judge
Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the
Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, footnotes 52 and 54.
148 E.g. Halling 2010, pp. 827 et seq. (suggesting, at p. 829, that the policy requirement for
crimes against humanity in the ICC Statute should be removed altogether; or that if not, the word
“organization” in Article 7(2)(a) of the Statute should be scribed “the widest definition” possi-
ble e.g. by relying on the definition in Article 2(a) of the UN Convention against Transnational
Organized Crime of 2000 in which the word “organization” is defined as “a structured group
of three or more persons, existing for a period of time and acting in concert with the aim of
committing one or more serious crimes”, with a “structured group” defined in Article 2(c) as
being “not randomly formed…and that it does not need to have formally defined roles for its
members, continuity of its membership or a developed structure”); Hansen 2011, p. 37; Sadat
2012; Werle 2009 p. 302 (arguing, inter alia, that “threats to values protected by international law
… can certainly arise from non-state actors or private persons …. As with genocide, in crimes
against humanity participation of states or state-like organizations is the rule in practice, but not
a legal requirement” Consequently, he argues that “in order to classify the attacks on the New
York World Trade Centre and the Pentagon [and one could add the crimes perpetrated by the
Boko Haram in Nigeria or the Al Shabaab in Somalia] as crimes against humanity, it does not
matter whether the acts can be ascribed to a terrorist organization alone or also to a state-like
entity”). For more literature with similar views see footnote 53 in the Dissenting Opinion of
Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation
in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010.
149 See Eskridge 1987, pp. 1479 et seq. (generally proposing a dynamic model for statutory
interpretation, though not specifically for criminal law statutes). On how dynamic interpretation
is relevant for international crimes, see Robinson 2010, pp. 145–147 (indicating that the dynamic
interpretation approach is human rights-oriented. As such, it requires that “terms must be given
meanings relevant to contemporary society” (p. 145), as “crimes appear to be growing broader in
case after case” (p. 146)). Also see generally Schabas 2006b, pp. 93 et seq (critically discussing
the “dynamism and radical evolution” of the interpretation of the crime of genocide by the ad hoc
Tribunals); Watson 2003, pp. 871 et seq.; Askin 2002, pp. 903 et seq.
It is submitted that one could still rely on the historical evolution of crimes
against humanity to counter-argue the historical–phenomenological justifications
on which Judge Kaul based his dissenting opinion. The following section does just
that.
6.4.2.4.4 To What Extent Is the Historic Experience Relevant to the ICC?
6.4.2.4.4.1 Evolution of the Definition of Crimes Against Humanity

Of all the definitions of the core crimes under international law, that of crimes
against humanity has been most dynamic, having undergone a clear chronological
metamorphosis since its first formulation. Such evolution is evident in terms of
both the material and contextual elements of the crime.150 For example, as regards
the original definition in the IMT Charter, contextually, crimes against humanity
would only result if the material elements were committed “in execution or in con-
nection with” crimes against peace and war crimes.151 The immediate subsequent
definition in the Control Council Law No. 10 dispensed with the requirement for a
nexus with the other crimes, thereby effectively treating crimes against humanity
as an independent crime.152
Then, while the ICTY Statute expressly required that crimes against humanity
be committed in the context of an “armed conflict, either of internal or interna-
tional character”, the Statutes of the ICTR and the Special Court for Sierra Leone
dispensed with this requirement. Instead, the latter two Statutes required that the
material elements of the crime be “committed as part of widespread or systematic
attack”, and the ICTR Statute further required that the attack be made “on
national, political, ethnic, racial or religious grounds”.153 Thus, from the IMT
Charter to the ad hoc Tribunals and hybrid courts, there has always been a new
element in the definition of crimes against humanity, and this has been not a mere
accident.
For example, the definition of crimes against humanity in the IMT Charter
responded to the atrocities committed by the Germans alongside the aggression
war they waged. For that reason, it required a nexus with the war or the acts of
aggression. The definition in the ICTY Statute was crafted to respond to the armed
conflict which had taken place in the former Yugoslavia. For that reason, it specifi-
cally required a nexus with an armed conflict. The definition in the ICTR Statute
was crafted to respond broadly to the 1994 Rwandan genocide in which close to
one million people had been murdered. For that reason, it focused mainly on the
150 See generally Cassese 2013, pp. 84–108; Hwang 1998–1999, pp. 457 et seq.; Ratner et al.
2009, pp. 48–81.

151 IMT Charter, Article 6(c).
152 CCL No. 10, Article II(i)(c).
153 ICTR Statute, Article (3), SCSL Statute, Article 2.
widespread and systematic nature of the atrocities and dispensed with the need for
a nexus with an armed conflict which the ICTY Statute had required. The defi-
nitions in the ICTY and ICTR Statutes differed in this fundamental way despite
the fact that both Statutes were adopted at about the same time (1993 and 1994,
respectively) and by the same body, the UN Security Council.
One clear thing from the foregoing paragraph is that all the definitions of
crimes against humanity prior to the adoption of the ICC Statute were retrospec-
tive in nature; they were backward looking.154 They responded to crimes which
had already been committed, namely crimes whose specific circumstances and
contours were clearly known even before their definitions were adopted. Thus, in
all these cases, it was the known characteristics of the already-committed acts that
shaped or determined the content and scope of the definitions of the crimes against
humanity. But as the following two sections demonstrate, the ICC Statute entails a
completely different paradigm.
6.4.2.4.4.2 The Prospective Nature of the ICC Statute

Unlike the IMT Charter and the Statutes of the ad hoc Tribunals, the ICC Statute is
prospective; it is forward looking.155 This is not to argue that the historic experi-
ences that underpin the foundations of crimes against humanity have no relevance
today as far as the ICC is concerned. Rather, it is to agree with Sadat that over-
reliance on the Nuremberg precedent today is counter-productive; it amounts to
retrogression to almost seven decades ago. Similarly, agreeing with Judge Kaul’s
argument that “organization” means “military-like organized groups” will in effect
“reverse nearly two decades of progressive development by effectively re-linking
the commission of [crimes against humanity] to a finding of armed conflict (which
requires organized fighting forces)”.156
The fight against impunity for “serious crimes of concern to the international
community” can be more efficient if the ICC Statute is applied progressively, i.e. in
a manner that responds to or takes into consideration the new or contemporary
experiences. Such experiences include the emergence of organized entities, perma-
nent and ad hoc in nature, which are neither states nor state-like, but which have got
the capacity to commit very serious crimes.157 Indeed, as Sadat rightly puts it,
regardless of “the canonical status of the Nuremberg precedent in international
criminal law”, and even if it may seem “heretical” to object it, Judge Kaul’s
154 Cf. Ambos 2010, pp. 161–162 (labelling this as a “congenital defect” of the ad hoc tribunals).
155 ICC Statute, Article 24(1) read together with Article 126, provide that the ICC has jurisdic-
tion only over crimes committed on or after the Statute came into force i.e. 1 July 2002.
156 Sadat 2012a, p. 6.
157 Cf. Damgaard 2008, pp. 83–85.
argument “does not [adequately] respond to the terrible suffering of today’s victims
of [crimes against humanity], nor does it accurately describe the modern law”.158
Moreover, unlike the ICTR and ICTY, which were created as ad hoc institutions,
the ICC was established with a view to being be a “permanent court”.159 As such, no
“completion strategy” was contemplated for the ICC. Logically, therefore, it is
expected that this institution will be able to render international criminal justice effec-
tively and adequately for an indefinite future. Given that the procedure for the amend-
ment or review of the ICC Statute is long and cumbersome,160 it is illogical if the ICC
Judges were to start introducing untenable restrictions in the application or interpreta-
tion of the Statute even where the Statute itself does not warrant such restrictions.161
6.4.2.4.4.3 Interim Conclusion
The Pre-Trial Chamber’s majority view on the interpretation of the word “organi-
zation” under Article 7(2)(a) is welcome, for it largely responds to the reality of
crimes under international law today. This was another area and opportunity in
which the Chamber adopted a pragmatic view in relation to a contentious legal
issue involving the interpretation of the ICC Statute.162 In the circumstances of (or
similar to) the crimes committed in Kenya, placing more reliance on the capacity
of the entity to organize and implement attacks rather than on the organizational
structure of the entity is a correct approach; it is not a mere judicial activism as
critics might think or argue. Indeed to the international community, whose interest
is to ensure that serious crimes of international concern do not go unpunished, and
more importantly, to the victims of the post-election violence in Kenya, justice
does not depend on the strict organizational structure of the entities which may
have orchestrated the commission of the crimes.
6.5 Issues Relating to Complementarity
6.5.1 Meaning of Complementarity
Legally speaking, the ICC and national courts have concurrent jurisdiction over
the core crimes in the ICC Statute. Such a jurisdictional relationship required fur-
ther regulation in order to avoid competition for cases between the two legal
158 Sadat 2012b, p. 6.
159 ICC Statute, Article 1.
160 On the amendment procedure, see Article 121 of the ICC Statute which requires that any
amendment to a provision in the Statute must follow a similar procedure of ratification of the
Statute. For the procedure of review of the Statute, see Article 123.
161 Cf. DeGuzman 2000, p. 340.
162 Others include, e.g., issues of self-referrals and also “inaction” as a ground for admissibility
of a case.
6.5 Issues Relating to Complementarity 217
regimes. The principle of complementarity163 was agreed upon to serve this

purpose, and also to safeguard States’ sovereignty and increase their willingness to
accept the jurisdiction of the ICC.164 Both the Preamble and Article 1 of the ICC
Statute, in a similar wording, stipulate that the ICC “shall be complementary to
national criminal jurisdictions”. It is clear from this formulation that precedence is
given to national courts over the ICC as far as the prosecution of the core crimes is
concerned. The national courts are the primary jurisdictions while the ICC remains
a secondary jurisdiction—a court of last resort. Therefore, the complementarity
model clearly differs from the primacy model that governs the relationship
between the ad hoc Tribunals and the national courts.165
The content of the principle of complementarity is embodied in the provi-
sions of Article 17 of the ICC Statute which deals with “issues of admissibility”.
The Article enumerates circumstances in which a case becomes inadmissible
before the ICC. Accordingly, the ICC can admit a case on complementarity
grounds if the state with primary jurisdiction is inactive, unwilling or unable to
prosecute in good faith.166 Before analysing complementarity in relation to the
Kenya situation, the relevant parts of Article 17 are quoted verbatim
1. Having regard to para 10 of the Preamble and Article 1 [of the ICC Statute] the Court
shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over
it, unless the State is unwilling or unable to genuinely carry out the investigation
or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the
State has decided not to prosecute the person concerned, unless the decision
resulted from unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of
complaint, and a trial by the Court is not permitted under Article 20, para 3.167…
2. In order to determine unwillingness in a particular case, the Court shall consider…
whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made
for the purposes of shielding the person concerned from criminal responsibility;
163 For comprehensive literature on complementarity see Stahn and El Zeidy 2011.
164 See Batros 2011, pp. 589–592; Bekou 2011, pp. 833–835.
165 See Articles 9(2) and 8(2) of the ICTY and ICTR Statutes, respectively. For more details see
El Zeidy 2008b, pp. 403 et seq.; Bekou 2011, p. 833.

166 See Nouwen 2011, pp. 206–220. See also Bushnell 2009, pp. 77–89; El Zeidy 2008a; Gioia
2006, pp. 1099–1102; Pichon 2008, pp.185 et seq.

167 Article 17 provides for “complementarity” and “gravity of offence” as two main grounds or
tests on the basis of which the admissibility of a case before the ICC is determined. The two tests
are independent of each other. However, as the analysis in this part only concerns complementa-
rity, the provision that deals with the gravity-of-offence test (Article 17(1)(d)) is omitted from the
quoted text.
(b) There has been an unjustified delay in the proceedings which in the circumstances
is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impar-
tially, and they were or are being conducted in a manner, which, in the circum-
stances, is inconsistent with an intent to bring the person concerned to justice…
3. In order to determine inability in a particular case, the Court shall consider whether,
due to a total or substantial collapse or unavailability of its national Judicial system,
the State is unable to obtain the accused or the necessary evidence and testimony or
otherwise unable to carry out its proceedings.
As the following discussion will show, the ICC’s exercise of jurisdiction over the
Kenyan cases was not, legally speaking, due to Kenya’s unwillingness or inability
to investigate or prosecute, but was rather due to Kenya’s “inaction”.
6.5.2 Evaluation of “Unwillingness” and “Inability”

in Relation to Kenya
The post-election violence in Kenya per se did not have any direct effect on the
functioning of the country’s judicial system. After the violence, Kenya’s ability to
arrest, investigate and prosecute those involved in the violence remained the same as
it was prior to the violence.168 The allegations and perceptions that Kenya’s judiciary
continued lacking independence or being corrupt169 do not change this reality.
Although the judicial system remained functional, Kenya, as already shown, did
not show any political will to investigate or prosecute those who bear the greatest
responsibility for the crimes. Yet, as also shown earlier, some of the suspects had
been identified in various commission reports, and also the available domestic legal
framework could sufficiently be used to prosecute them. Although it has been argued
that this state of affairs per se could be taken as constituting “unwillingness” or “ina-
bility” to prosecute on the part of the Kenyan government,170 such an argument can-
not meet the threshold of unwillingness or inability if tested against the provisions of
Article 17 reproduced above, for reasons explained below.
According to Nouwen, in determining the admissibility of a case before the
ICC, examination of state’s unwillingness or inability to prosecute is, strictly
speaking, a secondary question or step. The primary step, as Article 17 above
168 Cf. Alai and Mue 2011, p. 1233. In this regard, Kenya was completely different from
Rwanda whose judicial system could be described as “unavailable” immediately after the 1994
genocide, because most professionals, including prosecutors, judges and lawyers, had died or
fled the country. Cf. Nash 2007, p. 79.
169 See supra Sect. 3.7. As the ICC Prosecutor rightly indicates, these allegations or perceptions
per se do not play a role in assessing State’s “inability” for purposes of admissibility of a case at
the ICC. See Moreno-Ocampo 2011, p. 23.
170 See, e.g., Sing’Oei 2010, pp. 11–15.
presupposes, is to establish an existence of tangible “proceedings”, namely con-

cluded or ongoing investigations or prosecutions in respect of the case. It is only if
such proceedings do not pass the genuineness test—e.g. if they were or are
intended for shielding the perpetrator(s), or if they lack independence or impartial-
ity—can the state concerned be said to be unwilling or unable to investigate or
prosecute.171
As already shown, and will be explained below, Kenya did not even initiate
proceedings. This is to say that even the first step that would have paved way
for the legal assessment of unwillingness or inability was not reached at the
domestic level. The mere non-existence of proceedings in this regard, therefore,
renders irrelevant a determination of unwillingness or inability for purposes
complementarity with regard to the Kenya situation. However, since it was
Kenya’s failure to initiate proceedings (inaction) which was the basis of admis-
sibility of the situation and the cases before the ICC, it (inaction) merits further
evaluation.
6.5.3 Inaction as a Component of Complementarity
6.5.3.1 Meaning of Inaction
The notion of inaction (also “inactivity”) is not mentioned explicitly under Article
17 of the ICC Statute. However, it is now settled that inaction is implicit in this
provision, being a third ground (in addition to unwillingness and inability) which
makes a situation or a case admissible before the ICC for complementarity pur-
poses. The fact that “inaction” is part and parcel of Article 17 was raised for the
first time in 2003 by a group of prominent scholars (experts) in a paper commis-
sioned to them by the ICC.172 Their argument was endorsed by the ICC’s OTP173
and later by both the Pre-Trial Chamber174 and the Appeals Chamber.175
Accordingly, “inaction” as a ground for admissibility of situations and cases
before the ICC comes into play in circumstances where unwillingness or inability
cannot practically or legally apply, namely where there are no national
171 Nouwen 2011, pp. 208–212; Cf. Decision on the Admissibility of the Case, Gaddafi and Al-
Senussi, (ICC-01/11-01/11-466-Red), PTC, 11 October 2013, paras 24–27.
172 See Office of the Prosecutor 2003a. For concurring views see Robinson 2011b, pp. 460–502.
For dissenting views see Arsanjani and Reisman 2005, pp. 385 et seq.
173 See Office of the Prosecutor 2003b.
174 See Decision on Prosecutor’s Application for a Warrant of Arrest, Lubanga (ICC-01/04-
01/06-Corr), PTC, 10 February 2006.

175 See Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial
Chamber on the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25
September 2009.
proceedings at all encompassing the same person and the same conduct forming
the subject of the case before the ICC.176
Inaction occurs in two scenarios. The first scenario is where the state with juris-
diction is doing nothing as regards investigations or prosecutions, even though, for
example, prima facie, such a state appears able to do so. The second scenario where
inaction comes into play is in a case of a self-referral, i.e. where the state of com-
mission relinquishes or waives its primacy of jurisdiction voluntarily in favour of
the prosecution before the ICC believing that, due to specific circumstances, justice
will be delivered or rendered more effectively by the ICC. As a practice, the second
scenario is now embedded in the ICC’s legal regime177 despite facing a strong criti-
cism when it was first endorsed.178 In cases of inaction, the ICC intervenes in order
to fill the impunity gap that could have resulted if it (the ICC) did not do so.179
6.5.3.2 Analysis of Inaction in Relation to Kenya
Complementarity assessment in investigations triggered proprio motu, like the case

of the Kenya situation, takes place at two levels, i.e. the situation and case levels.
Each level entails different thresholds and contexts in which the assessment is
done.180 For example, complementarity requires a higher degree of specificity when
assessed at a case level than when it is assessed at a situation level. This being the
case, Kenya had an opportunity to claim its primacy of jurisdiction at each level with
176 Decision on Prosecutor’s Application for a Warrant of Arrest, Lubanga (ICC-01/04-01/06-

Corr), PTC, 10 February 2006, paras 31, 37 and 41; Judgment on the Appeal of Mr. Germain
Katanga against the Oral Decision of Trial Chamber on the Admissibility of the Case, Katanga
and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009, paras 75–79.
177 See Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case
(Article 19 of the Statute), Katanga and Chui (ICC-01/04-01/07-1213-tENG), TC, 16 June 2009,
paras 76–80; Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial
September 2009, para 86. For more details see Akhavan 2010, pp. 110–111; Akhavan 2011, pp.
299–302; Office of the Prosecutor 2003a, pp. 19–20 and Footnote 24; William and Schabas 2008,
p. 614, para 22.
178 Critics argued that the practice is a clear contravention of the complementarity principle, as
it encourages states which are able to prosecute to neglect and shift their duty to the ICC. See
e.g., Document in Support of Appeal of the Defence for Germain Katanga against the Decision
of the Trial Chamber, Katanga and Chui (ICC-01/04-01/07-1279), AC, 8 July 2009, paras 62–72;
Arsanjani and Reisman 2005, p. 397; Schabas 2006a, p. 32; Akhavan 2010, pp. 103 et seq.
179 Office of the Prosecutor 2003a, paras 17–20; Office of the Prosecutor 2003b, p. 5; Judgment
on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber on the
Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009,
paras 79–86; Batros 2011, p. 600; Benvenuti 2008, pp. 63–65.
180 Olasolo and Cernero-Rojo 2011, pp. 393 et seq. (discussing the admissibility of a “situation”
and a “case” in view of the differences ascribed to the two notions by the ICC). See also Decision
on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19),
PTC, 31 March 2010, para 43.
different implications. Although Kenya did not bother to invoke complementarity at

the situation level, the Pre-Trial Chamber did a suo motu assessment. Kenya tried to
invoke complementarity only at the case level, albeit unsuccessfully.
6.5.3.2.1 Inaction at Situation Level: The Notion of “Potential Cases” and

Deferral of Investigations Under Article 18
Article 18 of the ICC Statute covers complementarity at the level of a situation. It

provides that even when the Prosecutor has a reasonable basis to commence a pro-
prio motu investigation into a situation, he or she cannot embark on it immedi-
ately. The Prosecutor shall first notify all the States which could have jurisdiction
over the alleged crimes, including the state of commission.181 Then, a State so
notified is given up to 1 month to assert its primacy of jurisdiction by: (i) inform-
ing the Court if “it is investigating or has investigated” the crimes relating to “the
information provided in the notification”; and (ii) requesting the Prosecutor to
defer to that state’s investigation of those persons. In fact, this is not a “request”
per se; it is a demand to which the Prosecutor must comply, unless he or she justi-
fies before the Pre-Trial Chamber as to why he or she should be authorized to con-
tinue with investigations despite the demand. One such justification could be that
the deferral was asked for in bad faith.182
Therefore, Article 18 makes it possible for a state with any jurisdictional link
with a situation to prevent the Prosecutor from initiating an investigation, “because
even initiation of an investigation might interfere with the exercise of national
jurisdiction”.183
6.5.3.2.1.1 Kenya’s (Lost) Opportunities Under Article 18

Had Kenya invoked Article 18, it would have got several advantages. At this
particular stage, complementarity applies vaguely or generally, since no specific
suspects have been identified yet. The basis of its assessment is “possible or
potential cases” as opposed to “specific cases”. So all Kenya had to do at this stage
was to show genuinely that it was generally investigating the “group of persons”
and “incidents” which were likely to form Prosecutor’s future “potential cases”.184
There would not have been a strict requirement to show a high degree of
specificity as regards the identity of the persons or the crimes or conduct being
181 ICC Statute, Article 18(1). The notification must contain basic information about acts that
may constitute crimes under the Statute, but the notified state may still request for more informa-
tion from the Prosecutor. See also Rules 52–57.
182 ICC Statute, Article 18(2). See also Nsereko 2008, p. 632.
183 Nsereko 2008, pp. 628–629 and footnote 4.
(ICC-01/09-19), PTC, 31 March 2010, paras 50–52.

investigated. For example, it would have been sufficient for Kenya to prove that it
was investigating “events”, such as “the massacre in a certain village or a cam-
paign in a particular geographic area during a particular time period” with regard
to the post-election violence.185
Even if Kenya had not yet started “actual investigations” at this level, it would
still have been possible to argue that it “intended” to do so because the Prosecutor’s
notification that he wanted to intervene, together with any additional information
furnished by the OTP, had been the motivation to trigger such domestic investiga-
tions. Such arguments would have been sufficient for a deferral under Article 18 in
view of the general nature of applicability of the complementarity principle at this
(situation) stage.186 In this regard, Kenya could have presented its plan for domestic
investigations and prosecutions. As it will be shown shortly, Kenya attempted to
present such a plan at a later stage, but this was already too late.
Lastly, had Kenya requested and obtained a deferral under Article 18, it would
have got a period of up to 6 months before the Prosecutor could review the deferral
again, provided that it continued to show constant genuineness in its investiga-
tions.187 However temporary this “grace period” might seem, it would have enabled
Kenya to commence or continue with investigations while continuing to put its
house in order with regard to prosecutions.188 Thus, there would have been time, for
example, to re-engage Parliament with regard to the creation of the proposed local
tribunal or the designing of any other domestic forum, such as a special division of
the judiciary, where the cases linked to the post-election violence could be tried.
6.5.3.2.1.2 Reasons for Kenya’s Failure to Invoke Article 18

Of all the situations he handled, the former ICC’s Prosecutor Moreno-Ocampo is
said to have acted, arguably, most transparently with regard to Kenya.189 For
example, the Prosecutor did not hasten the ICC’s intervention in Kenya even when
matters so dictated. Even prior to the official notification of his intention to com-
mence investigations into Kenya, the Prosecutor had insisted that “if the Kenyan
authorities [carried] out genuine judicial proceedings against those most responsi-
ble, the OTP [would] not have ground to intervene”.190 This suggests that even
before the ICC’s intervention, the Kenyan authorities were already aware, or at
least had a clue, of the “potential cases” that the Prosecutor had in mind. In any
case, it must have been clear that the main source of the Prosecutor’s potential
185 See Office of the Prosecutor 2003a, paras 24–26 and footnote 10; Olasolo and Cernero-Rojo
2011, p. 405.
186 Cf. Nsereko 2008, p. 632.
188 Cf. Bantekas 2010, p. 433 (describing this as a “first (last minute) pick” given to a state
before the ICC process commences).

189 See Seils 2011, p. 1011.
190 See ICC Press Release ICC-CPI-20090703-PR431, 3 July 2009; Office of the Prosecutor
2009.
action would be, among others, the publicly available reports of the Waki
Commission and that of the Kenya National Commission on Human Rights, and
that the Prosecutor’s main list of suspects would, first and foremost, be derived
from the twenty names in the famous Waki envelope.
A question that arises at this juncture is why then did Kenya forgo the opportu-
nity under Article 18, while, as it will be shown shortly, it did not like the ICC’s
intervention? It is interesting that 2 years after losing this opportunity, the Kenyan
government argued in retrospect that it would “not [have been] possible” to invoke
Article 18 “before the adoption of the new Constitution and the legislative and
other reforms”.191 However, this argument is not convincing since, as already
stated, even before the claimed reforms, Kenya’s judicial system had by all domes-
tic standards remained functional. Hence one fails to see why investigations, let
alone prosecutions, should have been completely “impossible”. One could even go
further to ask: What if the adoption of these particular reforms (mainly constitu-
tional) failed to materialize? Would it then have remained forever “impossible” for
Kenya to investigate and prosecute?
Considering the prevailing Kenyan domestic political situation at that time,
there are several reasons that contributed to Kenya’s failure to ask the Prosecutor
to defer to its investigations at the situation stage. One such reason is that Kenya
underestimated the opportunity available under Article 18, given that there had not
been any previous precedent where this provision had been invoked. Another rea-
son is that the ICC was still perceived by the Kenyan political elite as a remote
threat, especially because until then the names of the specific suspects to be
charged by the ICC had not been revealed by the Prosecutor. Lastly, the two main
political parties in the coalition government, PNU and ODM, might have failed to
agree on a common position as regards the immediate response or reaction to the
Prosecutor’s notification of his intention to open an investigation. This seems to be
the case is in view of the fact that even after the Prosecutor had intervened offi-
cially, the two sides of the coalition government opposed each other openly with
regard to Kenya’s request to the Security Council asking for a deferral of investi-
gation under Article 16 of the ICC Statute.192
6.5.3.2.1.3 Assessment by Pre-Trial Chamber

Assessing admissibility suo motu, the Pre-Trial Chamber asked the Prosecutor to
submit additional information on, inter alia, “admissibility within the context of
the situation in the Republic of Kenya”, specifically in relation to: (i) the incidents
that [were] likely to be the focus of an investigation; (ii) the groups of persons
involved that [were] likely to be the target of an investigation for the purpose of
identifying the potential cases under consideration; and (iii) domestic
191 Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of
the ICC Statute, Ruto, Kosgey and Sang and Muthaura, Kenyatta and Ali (ICC-01/09-02/11-26),
PTC, 31 March 2011, para 3.
192 See infra Sect. 6.6.1.
investigations, if any, with respect to those potential cases as constituted by the

previous two elements.193
On the basis of this information, the majority of the Pre-Trial Chamber ruled
that neither Kenya nor third states were “active” with regard to investigating ele-
ments that were likely to shape the Prosecutor’s “potential cases” to be derived out
of the situation. The Chamber further ruled that although Kenya submitted a report
supposedly showing that some domestic prosecutions had taken place, these prose-
cutions were only in respect of “minor cases”. More importantly, it found, as a
bigger flaw, that even these minor cases themselves did not cover the potential
cases against “senior business and political leaders” related to the two political
parties involved in the violence, the PNU and the ODM.194 Consequently, the
Chamber concluded that there was “inaction” at situation level which made the
Kenya situation admissible. But after the situation had been declared admissible,
the question of “inaction” emerged again at case level.
Unlike a situation, a “case” refers to “specific incidents during which one or
more crimes within the jurisdiction of the Court seem to have been committed by
one or more identified suspects”.195 Thus, a case arises out of an admitted situa-
tion. It comes into being when an arrest warrant or a summons to appear has been
issued against a specific suspect. Complementarity (admissibility) has to be deter-
mined again at this stage by specifically assessing both the individual and conduct
charged.196 Kenya invoked complementarity at this stage by filing an admissibility
challenge pursuant to Articles 19 and 17 of the ICC Statute.
6.5.3.2.2 Kenya’s Admissibility Challenge
Read together, Articles 19(2)(b) and 17 of the ICC Statute allow a state to chal-
lenge the admissibility of a “case” before the Pre-Trial Chamber by showing, inter
alia, that it is investigating or prosecuting the same case.197 On 31 March 2011,
Kenya invoked these provisions by filing an admissibility challenge, being the first
admissibility challenge ever by a State Party to the ICC Statute since the Court
became operational. Kenya’s main argument was that it had the ability and will-
ingness investigate the charged persons in view of the accomplished or ongoing
constitutional and other domestic legislative processes, all of which entailed
193 Decision Requesting Clarification and Additional Information, Situation in the Republic of
Kenya (ICC-01/09-15I), PTC, 18 February 2010, paras 11 and 14.
01/09-19), PTC, 31 March 2010, paras 53–54 and 182; see also Olasolo 2012, pp. 51–59.
195 Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, PRS3,
VPRS4, VPRS5 and VPRS6, Situation in the DRC (ICC-01/04-101-tEN), PTC, 17 January 2006,
para 65.
196 Cf. Jalloh 2012a, p. 273.
197 ICC Statute, Article 19(2)(b).
extensive judicial, prosecutorial and police reforms.198 In view of these reforms,

Kenya submitted, notably using the future tense, that: (i) the “investigations of
crimes will continue over the coming months”199; (ii) “the Government will be in
a position to submit [the timetable for the] implementation of the reforms and
investigative actions to the Pre-Trial Chamber” if a deadline is set200; (iii) “the
investigation of all cases, including those presently before the ICC, will be most
effectively progressed once the new DPP [Director of Public Prosecutions] is
appointed”201; (iv) a report “will” be submitted to the Pre-Trial Chamber showing
how the investigations “extend upwards to the highest levels and to all cases,
including those presently before the ICC”; and (v) that such report will be based
on a “bottom-up” investigation and prosecution strategy, which will first target the
“lower level perpetrators [and then]…those at the highest levels who may have
been responsible”.202
In addition, Kenya filed 22 documents203 purportedly “proving” that “the gov-
ernment was investigating the two cases presently before the ICC”. Among the
documents filed were (1) a letter from Kenya’s Attorney General to the Director of
Public Prosecutions, directing the recipient to investigate “all persons” alleged to
have been involved in the post-election violence, “including the six persons who
are subject of the proceedings currently before the ICC”; (2) a copy of the pro-
gress report on the post-election violence cases—the March 2011 “updated” report
(see supra Sect. 4.3.1.4.2.2); (3) a report on piracy cases prosecuted in Kenya. This
report was submitted purportedly to “prove” that “Kenya clearly [had] the capacity
and capability to investigate and prosecute serious crimes, and [had] the full back-
ing of the international community in doing so on its behalf”; (4) a copy of
Kenya’s 2010 (new) Constitution and six other pieces of legislation already
enacted or to be enacted to be evidence of the legislative reforms; and (5) various
Statements, Reports and Presentations, expressing the optimism that local trials
were still possible.204
198 Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of
the ICC Statute, Ruto, Kosgey and Sang and Muthaura, Kenyatta and Ali (ICC-01/09-02/11-26),
PTC, 31 March 2011; see also Jalloh, 2012a, pp. 271–272.
199 Application on behalf of Kenyan Government Pursuant to Article 19, Situation in the
Republic of Kenya (ICC-01/09-02/11-26), PTC, 31 March 2011, para 13.

200 Ibid., para 14.
201 Ibid., para 69.
202 Ibid., para 71.
203 See Filing of Annexes and Materials to the Application of the Government of Kenya
Pursuant to Article 19 of the Rome Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-64), PTC,
21 April 2011.
Republic of Kenya (ICC-01/09-02/11-26), PTC, 31 March 2011, paras 6–33.

6.5.3.2.2.1 Responses of the Prosecutor and Victims

Kenya’s submission in the future tense had negative implications on its admissibil-
ity challenge. Both the Prosecutor and victims’ common representative pointed out
that the future tense indicated a mere “promise” or “commitment” to investigate,
and that Kenya completely failed to reveal that at the time the admissibility chal-
lenge was filed any domestic investigations or prosecutions had been instituted by
in respect of the same six suspects and for the same conduct which was the subject
of the cases facing them before the ICC.205
6.5.3.2.2.2 Majority Decision on the Admissibility Challenge

The Pre-Trial Chamber dismissed Kenya’s admissibility challenge, one ground
being that it did not pass the complementarity test. Kenya appealed to the Appeals
Chamber, arguing that the decision of the Pre-Trial Chamber contained factual,
legal and procedural errors. This appeal, too, was dismissed by a majority of four
judges, one judge dissenting.
In short, the majority of Appeals Chamber agreed with the Pre-Trial Chamber,
the Prosecutor and the victims’ representative, that Kenya was “inactive”, for it
failed to prove that at the time of filing the admissibility challenge there had been
concluded or ongoing domestic investigations encompassing “the same
individual[s] and substantially the same conduct as alleged in the proceedings
before the Court”.206 In particular, the Appeals Chamber noted that to invoke com-
plementarity successfully at the case level, Kenya was duty-bound to prove the
existence of a “concrete investigative step”. This could include, for example, prov-
ing that it was “interviewing witnesses or the suspects, collecting documentary
evidence, or carrying out forensic evidence” in respect of the same six persons.207
It was concluded eventually that Kenya’s submission as a whole constituted an
205 Prosecution Response to “Application on behalf of the Government of the Republic of Kenya
pursuant to Article 19 of the ICC Statute”, Ruto, Kosgey and Sang (ICC-01/09-01/11-69), PTC,
28 April 2011, paras 16–29; Prosecution Response to “Application on behalf of the Government
of the Republic of Kenya pursuant to Article 19 of the ICC Statute”, Muthaura, Kenyatta and Ali
(ICC-01/09-02/11-71), PTC, 28 April 2011, paras 22–29; Observations on behalf of victims on the
Government of Kenya’s Application under Article 19 of the Rome Statute, Ruto, Kosgey and Sang
(ICC-01/09-01/11-70), PTC, 28 April 2011, paras 8–46. See also Jalloh 2012a, pp. 272–274.
206 See Decision on the Application by the Government of Kenya Challenging the Admissibility
of the Case Pursuant to Article 19(2)(b) of the Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-
101), PTC, 30 May 2011, paras 43–69; Decision on the Application by the Government of Kenya
Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Muthaura,
Kenyatta and Ali (ICC-01/09-02/11-96), PTC, 30 May 2011, paras 59–70; Judgment on the
Appeal of the Kenyan Government against PTC II’s Decision on the Admissibility of the Case,
Ruto, Kosgey and Sang (ICC-01/09-01/11-307), AC, 30 August 2011, para 39; Judgment on the
Appeal of the Kenyan Government against PTC II’s Decision on the Admissibility of the Case,
Muthaura, Kenyatta and Ali (ICC-01/09-02/11-274), AC, 30 August 2011, paras 33–46.
207 Cf. Stigen 2008, p. 203.
expression of “mere preparedness to take steps or the investigation of other sus-

pects”, which was not sufficient to render the cases inadmissible.208
6.5.3.2.2.3 Dissenting Opinion of Judge Anita Usacka

Judge Anita Usacka of the Appeals Chamber wrote a dissenting opinion. She
opined that in rejecting Kenya’s submission entirely, the Pre-Trial Chamber had
failed to “fully balance all relevant interests as required by the principle of com-
plementarity”. In particular, she noted that the Pre-Trial Chamber had failed to
“give sufficient weight” to the fact that the Court was handling the first admissibil-
ity challenge ever brought by a State, and therefore, that the challenge was sur-
rounded by “many legal and factual uncertainties”. More importantly, the
dissenting judge opined that instead of hastily dismissing Kenya’s admissibility
challenge on the ground of non-existence of a “concrete case” in respect of the six
suspects, some consideration should have been given to assessing the genuineness
of Kenya’s plan. She noted that even though Kenya’s plan was clearly a “promise
to investigate”, Kenya appeared to be acting in good faith, because the plan
showed that “within a short period of time, Kenya would reach the level of an
investigation that would satisfy the standards”. Thus, the dissenting judge found
that the Pre-Trial Chamber, inter alia, “did not completely account for the sover-
eign rights of Kenya and the principle of complementarity”. She concluded that if
these factors were sufficiently pondered, the Pre-Trial Chamber and the majority
of the Appeals Chamber would have reached a different decision on Kenya’s
admissibility challenge.209
6.5.3.2.2.4 Analysis
The Kenyan government’s conception of complementarity in its submission was
deliberately too broad, a fact which makes it flawed.210 It sought to oversimplify
and overstretch the notion of complementarity by suggesting that the application
of the principle must always favour national jurisdictions even where their claim
that they are able or willing to investigate is clearly vague. For example, Kenya
submitted to the Pre-Trial Chamber that the two Kenyan cases were inadmissible
before the ICC, arguing that for a case to be declared inadmissible under Article
17 of the ICC Statute, “there is no ground [that the] persons being investigated [by
208 Prosecutor Judgment on the Appeal of the Kenyan Government against PTC II’s Decision
on the Admissibility of the Case, Ruto, Kosgey and Sang (ICC-01/09-01/11-307), AC, 30 August
2011, para 40.
209 Judge Anita Usacka’s Dissenting Opinion on Kenya’s Appeal against PTC’s Decision on
Kenya’s Admissibility Challenge, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-342), AC, 20

September, 2011, paras 20–32; Judge Anita Usacka’s Dissenting Opinion on Kenya’s Appeal
against PTC’s Decision on Kenya’s Admissibility Challenge, Ruto, Kosgey and Sang (ICC-01/09-
01/11-336), AC, 20 September 2011, paras 20–32. See also Jalloh 2012a, p. 274.
210 Cf. Asaala 2012, pp. 132–134.
a national jurisdiction] must necessarily always be the same as those the ICC
Prosecutor has named [or charged]”.211 Rather, Kenya continued to argue, under
the same-person test, it is sufficient if the national investigation covers “the per-
sons at the same level in the hierarchy being investigated by the ICC”. For that
reason, Kenya claimed that there were ongoing national investigative processes,
which extended “to the highest levels for all possible crimes, thus covering the …
cases before the ICC”.212
Jalloh rightly notes that such a wide interpretation “swings the pendulum too
far”, as it suggests that “mere expression of an intent to proceed against an amor-
phous group of unidentified suspects that may or may not include the suspects
presently before the Court” is enough.213 Had this erroneous interpretation been
upheld, it could have probably been used by Kenya as a leeway or loophole to
eventually shield some of the Ocampo six from prosecution. It could also have
been used to shield other persons who might bear major responsibility for the
post-election violence by deliberately not specifically targeting them but rather tar-
geting others “at the same level”.214
More importantly, Kenya’s argument was misplaced simply because it was
raised at the case level. As already shown above, the general applicability of com-
plementarity criteria as suggested by Kenya in its submission only applies when
admissibility is being assessed generally at a situation level, namely when no spe-
cific suspect has been identified yet. As that stage had passed, it is obvious that the
Kenyan government woke up too late.
On the other hand, Jalloh, like Judge Usacka, suggests that the ICC acted too
strictly and hastily with regard to Kenya, and thereby failed to strike a pragmatic
balance between the role of states and that of the ICC in relation to complementa-
rity. The argument is that the Pre-Trial Chamber should not have made an outright
rejection of all arguments by the Kenyan government, especially the self-imposed
strict timetable for ensuring that domestic investigations would be carried out.
Jalloh further argues that in this way, the ICC not only wrongly implied that com-
plementarity is akin to primacy, but also discouraged Kenya’s seemingly “legiti-
mate national attempts to prosecute”. In this regard, he asserts that both the
Pre-Trial Chamber and Appeals Chamber missed an opportunity to “breath life”
into positive complementarity.215
Jalloh’s argument is valid only to the extent that the core of the notion of posi-
tive (or proactive) complementarity is that the ICC should actively encourage
states which show a willingness to carry out genuine investigations and
211 Document in Support of Appeal of the Government of Kenya against the Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case, Muthaura,
Kenyatta and Ali (ICC-01/09-02/11-130), AC, 20 June 2011, para 82 (emphasis added).
Republic of Kenya, (ICC-01/09-02/11-26), PTC, 31 March 2011, para 32 (emphasis added).

213 Jalloh 2012a, pp. 277–278.
214 Ibid., p. 279.
215 Ibid., p. 278.
prosecution of the core crimes under international law.216 This notion is also envi-
sioned by the prosecutorial policy adopted by the ICC’s OTP.217 Kenya attempted
to “enforce” it through two requests for “assistance and cooperation” made subse-
quent to its unsuccessful admissibility challenge. In these requests Kenya asked
the Pre-Trial Chamber to “order” the OTP to send “all statements, documents and
other evidence” in its possession to Kenya to “assist … and obviate any unneces-
sary delays with its national investigation”.218
However, the notion of positive complementarity is policy-based. As a result,
it does not create any legal obligation on the part of the OTP to assist or conduct
investigations on behalf of national jurisdictions. It follows that the request by
the Kenyan government that the OTP be “ordered” to transmit its independently
gathered evidence to the Kenyan authorities lacked a legal foundation. In addition,
the request that the OTP should be “ordered” to send its evidence to the Kenyan
authorities weakened Kenya’s position even more. It must in effect have created
the (wrong?) impression that Kenya had already failed (was unable) to conduct
investigations on its own.
Interestingly, after losing its admissibility challenge, and after the requests for
“assistance and cooperation” had been dismissed, Kenya did not pursue its pur-
ported self-imposed time table for domestic investigations and prosecution. This
confirms the theory that the plan was only geared towards “rescuing” the Ocampo
six, and that it was not necessarily intended as a genuine plan to address impu-
nity with respect to all main perpetrators of the crimes linked to the post-election
violence.
At another level, assuming that Kenya was able to satisfy the same-person test,
i.e. could establish that it was investigating the six suspects, it appears that Kenya
would still be faced with another herculean task of proving that any alleged
domestic proceedings satisfied the same-conduct test. Up until now the ICC has
declined to set out the parameters of this test.219 Even though in the Kenyan case
the Appeals Chamber changed its formulation slightly from “same conduct” to be
“substantially same conduct”, the precise scope of the test still remains a matter of
216 For details see Hall 2011, pp. 1014 et seq.

217 See Moreno-Ocampo 2011, pp. 21–32.
218 See Requests for Assistance on behalf of the Government of the Republic of Kenya pursuant
to Article 93(10), Article 96 and Rule 194, Situation in the Republic of Kenya (ICC-01/09-58),
PTC, 21April 2011 and (ICC-01/09-79), PTC, 16 September 2011.
219 See, e.g. Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial
September 2009, para 81; Decision on the Application by the Government of Kenya Challenging
the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Muthaura, Kenyatta and
Ali (ICC-01/09-02/11-96), PTC, 30 May 2011, para 53; Judgment on the Appeal of the Kenyan
Government against PTC II’s Decision on the Admissibility of the Case Muthaura, Kenyatta and
Ali (ICC-01/09-02/11-274), AC, 30 August 2011, para 33; Reasons for the Oral Decision on the
Motion Challenging the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1213-
tENG), PTC, 16 June 2009, para 95. See also Boas et al. 2011, pp. 76–77.
speculation. Since the Prosecutor was not prepared to trust the Kenyan govern-
ment, given the way it had conducted itself until then, the Prosecution would have
probably used this limb of the test to cling to the cases, because the position of the
Prosecutor (shown below) as regards the precise scope of the same-conduct test
has been equally unpredictable.
For example, in Katanga and Chui the Prosecutor argued that “same conduct”
means the “precise conduct”, meaning that it must entail not only the same actus
reus, but also the same “specific incidents” sought to be prosecuted at the ICC;
and that it must not be merely “similar” or “other conduct”.220 When applying for
authorization of investigation into Kenya, the Prosecutor argued that the phrase
“same conduct” must also encompass a “serious offence” under domestic law and
not merely “minor offences”.221 He did not give any criterion as to how the “seri-
ousness” of the offence should be measured. But scholars have, in the same way,
suggested that the same-conduct test must consider the gravity of the offence
charged by the domestic jurisdiction, such that the offence must necessarily be in
respect of a “serious ordinary crime”. In this regard, it has been argued that the test
cannot be said to have been met if the offence charged domestically was, for
example, a simple assault, while such a conduct would have contextually
amounted to genocide at the ICC.222 It seems that in view of this argument, grav-
ity of the offence could also be determined on the basis of the maximum sentence
that the charged offence attracts domestically.223
6.6 Other Responses to ICC’s Intervention
Apart from the challenging the admissibility of the two cases, Kenya explored other
legal responses and strategies (outside of the ICC’s courtroom) to try to halt the trial
of the suspects. In addition to the legal responses, some political and diplomatic
strategies were also employed. This part identifies and analyses these responses.
Immediately after the six suspects were named, Kenya, through its then Vice
President Kalonzo Musyoka embarked extensively on so-called “shuttle
220 See Prosecution Response to Motion Challenging the Admissibility of the Case by the
Defence of Germain Katanga, Katanga and Chui (ICC-01/04-01/07-1007), PTC, 30 March 2009,
paras 64–69; Prosecution’s Response to the “Appeal of the Government of Kenya against the
Decision on the Application by the Government of Kenya Challenging the Admissibility of the
Case, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-168), AC, 12 July 2011, para 95; Nouwen
2011, p. 211.
221 See Prosecutor’s Request for Authorisation of an Investigation, Situation in the Republic
of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 54 (stating that “there are no domestic
prosecution [sic] for the crimes against humanity allegedly committed in Kenya”, and that there
had only been “a limited number of proceedings for less serious offences in connection to the
crimes allegedly committed during the post-election violence”).
222 See, e.g. Broomhall 1999, p. 149; Benzing 2003, p. 616; Carter 2010, p. 194.
223 Cf. supra Sect. 4.3.1.2.
6.6 Other Responses to ICC’s Intervention 231
diplomacy”. This entailed diplomatic visits and talks with other states aimed at
achieving one main broad objective, namely to solicit the support of individual
states, the AU and that of the UN Security Council in respect of Kenya’s bid for
deferral of investigations in respect of the two cases.224 By 9 February 2011, a
total of Kenyan Shillings 31.5 million (about 40,000 US Dollars) had already been
spent on lobbying the African states in this regard, and more money was expected
to be spent on the lobbying of the members of the UN Security Council.225
6.6.1 Attempts to Have the Cases Deferred Under Article 16
In terms of Article 16 of the ICC Statute, the UN Security Council has powers to
adopt a resolution under Chapter VII of the UN Charter to suspend ICC’s investi-
gations or prosecution in respect of a situation or case can be suspended for a
renewable period of 1 year. The Chapter VII mandate confers exclusive and unlim-
ited powers on the UN Security Council with respect to issues of international
peace and security. Consequently, the Security Council can request the ICC to
defer (postpone) an investigation or prosecution of a situation or a case if the
Council is of the view that the continuance of such an investigation or prosecution
poses a threat to the international peace and security.226
On 4 March 2011, the Kenyan government submitted an official request to the
Security Council, asking it to defer the ICC’s investigations pursuant to Article
16.227 In this endeavour, Kenya managed to receive a strong backing of the AU as
a regional bloc.228 This notwithstanding, chances of Kenya succeeding in its defer-
ral bid remained very slim from the onset. Initial indicators that Kenya would fail
came even before its request was officially made, when the US Ambassador and
British High Commissioner to Kenya declared publicly that their respective coun-
tries would veto such a request should it make its way to the Security Council.229
In the end, Kenya’s deferral request was rejected by the Security Council in April
2011.230 Almost 2 years after this rejection, on 18 January 2013, the Security
224 Daily Nation, 4 March 2011.

225 See The Standard Digital, 9 February 2011.
226 For details, see Bergsmo and Pejic 2008b, pp. 595–604.
227 See the Letter of the Permanent Representative of Kenya to the United Nations to the
President of the Security Council on Kenya’s deferral request, S 2011/201, 29 March 2011 http://
www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/
Kenya%20S%202011%20201.pdf. Accessed September 2014.
228 See African Union, Decision on the Implementation of the Decisions on the International
Criminal Court (ICC), Doc. Ex.CL/731(XXI) para 4. See also The Standard, 5 February 2011;
Sunday Nation, 28 January 2011.
229 See Kuperstein 2011, p. 56.
230 Daily Nation, 9 April 2011.
Council published a report which, among other things, discussed Kenya’s request
and gave the reasons for the rejection.231
As indicated above, the Security Council would have adopted a deferral resolu-
tion under Chapter VII of the UN Charter in favour of Kenya only if it was con-
vinced that continuing with the ICC judicial process in respect of Kenya posed a
threat to national or international peace and security. However, even before the
Security Council received Kenya’s request for deferral, the situation was already
pointing to the fact that it would be impossible for Kenya to establish its case con-
vincingly. The main reason is that the Security Council had previously expressed a
view that sharply contrasted what Kenya was advancing as a reason for deferral.
While Kenya believed that the ICC process per se posed a threat to its internal
unity, peace and stability, the Security Council believed that the prosecution of
international core crimes by international tribunals per se can be a means of restor-
ing and maintaining peace and security.232 Hence, it is not surprising that the
Security Council members decided to dispose of Kenya’s request quickly through a
simple “informal interactive dialogue” held with Kenya’s Ambassador to the UN
and attended by the AU members sitting in the Security Council at that time
(Gabon, Nigeria and South Africa). As anticipated, the Security Council members
agreed that “the situation in Kenya did not amount to a threat to international peace
and security; therefore, it was not an issue for the Council to decide upon”.233
Kenya’s bid for deferral was bound to fail also because Kenya was wrong in
seeking to utilize the powers of the Security Council under Article 16 to achieve
the ends of complementarity.234 Having realized that it had a weak case in trying
to justify its deferral request on grounds of threat to peace and security, Kenya
cited (in its deferral request) the ongoing domestic judicial reforms and its ability
and willingness to conduct domestic prosecutions as other grounds on the basis of
which the Security Council should consider deferring the ICC’s investigations.235
Clearly, these arguments were misplaced, for they pertained to complementarity
(see supra Sect. 6.5) and not to deferral of investigations. The two concepts differ
in the way they apply under the ICC Statute. That is why the members of the
Security Council “advised” Kenya, and rightly so, that the preferable venue where
such grounds could be advanced was before the ICC itself, as they pertained to
admissibility of a case under Article 19 (read with Article 17) of the ICC Statute;
and that such issues fell outside the scope of the Security Council envisioned by
Article 16 of the Statute.236
231 UN Security Council 2013a, pp. 30–32.

232 See, for example, Preamble para 6 of the UNSC Resolution S/RES/827 (1993) of 25 May
1993 on the establishment of the ICTY; and Preamble para 7 of the UNSC Resolution 955 (1994)
of 8 November 1994 on the establishment of the ICTR; Bergsmo and Pejic 2008b, p. 599.
233 UN Security Council 2013a, p. 31.
234 See Gevers and Du Plessis 2011.
235 See All Africa, 8 March 2011.
Also, it was expected from the onset that two aspects of the Darfur situation
before the ICC would play a role at the Security Council’s deliberations on the
Kenya’s deferral request. One such aspect is that when the ICC issued arrest war-
rants against the Sudanese President Omar Al-Bashir,237 the AU made efforts simi-
lar to those made by Kenya to have Al-Bashir’s case deferred.238 The argument
then was that if the case against Al-Bashir proceeded, or if the arrest warrants
against him were executed, there would be a likelihood of a bigger threat to peace
and security than if a deferral was granted to avail the AU an opportunity to medi-
ate in the conflict. As far as the peace-and-security argument is concerned, the
argument by the AU regarding Sudan is comparatively more convincing and
weightier than the similar argument advanced in relation to Kenya. This is for the
simple reason that when the arrest warrants were issued against Al-Bashir, he was
a serving Head of State. This being the case, the possibility that his arrest could
lead to instability or pose a threat to peace and security cannot be dismissed
lightly, neither can it be considered to be a trivial argument. But this notwithstand-
ing, the Security Council declined to defer the case against Al-Bashir.239
In fact, when dismissing Kenya’s deferral request, the Security Council made a
brief but explicit reference to the Al-Bashir case. The members of the Council
were of the view that allowing Kenya’s deferral request for the reasons advanced
would be a “loose reading” of Article 16, and that it would “set a precedent for a
similar decision regarding the indictment of President Al-Bashir of Sudan, another
deferral case backed by the AU”. They further noted that if the Security Council
was not at all prepared to defer the case against Al-Bashir, whose case was
referred to the ICC by the Council itself,240 and whose country was not even a
State Party to the ICC Statute, then it (the Council) had even better reasons not to
interfere with ICC’s investigation in respect of Kenya which is a State Party to the
ICC Statute and whose referral to the ICC was not done by the Council.241
There is yet another aspect of the Al-Bashir case that can be directly linked to
Kenya, and which, although not explicitly referred to by the Security Council,
might have worked negatively against Kenya when the Council was deliberating
on its deferral request. This is the fact that previously Kenya had intentionally
acted in defiance of its obligation under the ICC Statute, and the UN Charter spe-
cifically, in relation to Al-Bashir. On 27 August 2010, Kenya invited Al-Bashir to
attend the promulgation of Kenya’s new Constitution freely (without arresting
him), despite there being pending ICC arrest warrants against him. By doing so,
Kenya defied not only the ICC but also the Security Council, given that the situa-
tion in Darfur had been referred to the ICC by the Security Council. The ICC
237 See First Warrant of Arrest, Al Bashir (ICC-02/05-01/09-1), PTC, 4 March 2009 and Second
Warrant of Arrest, Al Bashir (ICC-02/05-01/09-95), PTC, 12 July 2010.

238 See e.g., African Union, Decision on the Meeting of African States Parties to the Rome
Statute of the International Criminal Court (ICC), Doc. Assembly/AU/13(XIII), 3 July 2009.
239 See generally Ciampi 2008, pp. 885 et seq.; Weldehaimanot 2011, pp. 208 et seq.
240 See UN Security Council Res. 1593 of 31 March 2005.
reported Kenya’s defiance to the Security Council for the Council to take any
action it deemed fit.242 Although the Council did not take any measures against
Kenya in this respect, it is clear that this aspect of the Al-Bashir case already mili-
tated against Kenya, for Kenya did not have clean hands when it was making its
deferral bid.
The last factor which weakened Kenya’s deferral request was the contradictions
that emanated from the Kenyan coalition government itself. Seven days subse-
quent to Kenya’s filing of its deferral request, the ODM side of the coalition gov-
ernment (see supra Sect. 3.3) sent a letter to the Security Council enumerating
“sixteen reasons why the cases must not be deferred”. The ODM claimed that the
deferral request had been made by one side of the coalition government, the PNU.
More importantly, the letter confirmed what has already been mentioned above: It
stated that it was not the continued prosecution of the Kenyan cases by the ICC
which constituted threat to international peace and security, but rather it was the
absence of domestic prosecutions that posed a threat to internal peace and secu-
rity.243 This contradiction (two different positions/arguments from the same gov-
ernment) was a clear indication that the Kenyan coalition government itself was
not very serious about the deferral request.244
Kenya made another (second) deferral request to the Security Council after two
of the ICC suspects were elected Kenya’s President and Deputy President. The
request was inspired mainly by the AU’s efforts to fight what it perceived to be
a continual “mistreatment” of African leaders by “Western” judicial institutions.
This deferral request, which was also unsuccessful, will be examined in detail
under Sect. 6.7.4.
6.6.2 Attempts to Resort to Regional Criminal Jurisdictions
As alluded to above, the ICC’s intervention in Kenya came at the time when the
relationship between the AU and the ICC was already strained.245 Kenya tried to
capitalize on this “hostility” in order to halt the ICC process. In particular, Kenya
placed its hope in the ongoing AU’s project of extending criminal jurisdiction to
the African Court of Justice and Human and Peoples’ Rights that is intended to
enable that court to, inter alia, prosecute crimes under international law committed
by Africans in Africa. This particular project is arguably part of AU’s drastic
242 Decision Informing the United Nations Security Council and the Assembly of the States
Parties to the Rome Statute about Omar Al-Bashir’s Presence in the Territory of the Republic of
Kenya, Al Bashir (ICC-02/05-01/09-107), PTC, 27 August 2010.
243 See Letter by Prof. Peter Anyang’ Nyong’o, Secretary-General of the ODM, to the President
of the UN Security Council, 11 March 2011 http://newmedia-pirate.blogspot.com/2011/03/letter-

by-odm-to-un-security-council.html. Accessed September 2014.
245 Cf. Werle et al. 2014.
reaction to the increasing activity of the ICC in Africa against African politi-
cians.246 But if viewed from a broader perspective, and more positively, the
essence of extending the jurisdiction of this court could also be situated within the
recent AU’s political ideal of “African solutions to African problems”, which ideal
has largely informed most of AU’s recent policies.247
However, it soon became clear that the creation and putting into effect of the
contemplated criminal chamber in the AU court would require a process involving
not only the drafting and adoption of a protocol, but also an attainment of a mini-
mum number of ratifications.248 This means that the completion of such a lengthy
process would definitely have been overtaken by events at the ICC as far as the
Kenyan cases were concerned. To avoid this, the AU, in its May 2012 Summit, rec-
ommended that efforts be made to ensure that the cases against the Kenyan suspects
were “transferred” from The Hague to the East African Court of Justice (EACJ), a
regional court operating under the auspices of the East African Community
(EAC),249 based in Arusha, Tanzania, of which Kenya is a Member State.250 The
recommendation of the AU was made in line with a preceding Resolution of the
EAC to also expand the jurisdictional mandate of the EACJ so that it could try
criminal cases, including the ones facing the Kenyans at the ICC.251
The question that therefore crops up is this: Assuming that the proposed crimi-
nal chambers in the AU and EAC courts were successfully established, would this
have affected the Kenyan cases already at the ICC? Before answering this ques-
tion, two important general observations are worth making.
First, that there is no any provision in the ICC Statute that provides for a trans-
fer of cases from the ICC to national or regional courts. It follows that the ICC
would not have been bound to transfer the Kenyan cases even if the envisioned
criminal chambers in the AU or EAC courts were created.252 Second, the ICC
Statute is clear that ICC’s jurisdiction is “complementary to national [not regional]
246 Generally see Abass 2013a, pp. 933 et seq.; Abass 2013b, pp. 27 et seq.; Ambos 2013,
pp. 499 et seq.; Murungu 2011, pp. 1067 et seq.
247 See generally Dersso 2012.
248 The Protocol for the Court was adopted in June 2014. See Protocol on the Amendment to
the Protocol on the Statute of the African Court of Justice and Human Rights, Assembly/AU/
Dec.529(XXIII)—Doc. Assembly/AU/8(XXIII), Twenty-Third Ordinary Session of the AU
Assembly, 26–27 June 2014, Malabo, Equatorial Guinea.
249 The EAC is presently constituted by 5 States, Tanzania, Kenya, Uganda, Rwanda and
Burundi.
250 Radio Netherlands Worldwide, 24 May 2012.
251 See Resolution of the Assembly Seeking the EAC Council of Ministers to Implore the
International Criminal Court, EA Legislative Assembly, 26 April 2012 (on the Transfer of the
Case of the Accused Four Kenyans Facing Trial in Respect of the Aftermath of the 2007 Kenya
General Elections to the East African Court of Justice and to Reinforce the Treaty Provisions).
This Resolution was subsequently endorsed by the EAC General Assembly. See Joint
Communiqué of the 10th Extraordinary Summit of EAC Heads of State, 28 April 2012, para 20.
252 Cf. Ngari 2012.
criminal jurisdictions”.253 Accordingly, there is nothing in principle that can ren-

der a situation or a case inadmissible before the ICC, even when the particular sit-
uation or case is being investigated by a regional (not national) criminal court.
Despite the general observations above, the use of regional criminal courts to
achieve the ends of complementarity is not expressly prohibited or discouraged by
the ICC Statute.254 This could therefore be one of the areas in which flexibility is
necessary when interpreting and applying the ICC Statute. It is submitted that prop-
erly functioning regional criminal courts, just like national courts, have a great
potential in the fight against impunity, given the ever growing number of referrals
and a very limited number of cases that the ICC can prosecute. More importantly, in
line with the Statute’s underlying objective of zero tolerance to impunity for the core
crimes under international law, nothing would be wrong from a policy point of view
if a tripartite formal or informal relationship were forged between the ICC, national
courts and an effective regional criminal court, such that the ICC remains comple-
mentary to the regional court as it is currently to national courts. This would be a
new catalyst in the fight against impunity, especially where the state of commission
or third states are not willing to participate in the fight or where their participation is
not genuine. Thus, even though under the current arrangement regional criminal
jurisdictions are not expressly contemplated in the complementarity regime of the
ICC, it is difficult to imagine the ICC blatantly disregarding proceedings carried out
by a regional criminal jurisdiction, if such proceedings have been or are being con-
ducted in good faith and with the degree of genuineness in accordance with Article
17 of the ICC Statute, i.e. with no intention to shield the suspect from criminal
responsibility.255 In any case, Article 20 of the ICC Statute would, in principle, bar
the ICC from re-prosecuting a suspect for the same crime or conduct which has
already been prosecuted by “another court”. A regional criminal court would defi-
nitely qualify as “another court” within the meaning of this provision.
Similarly, it is further submitted that the proposal to extend criminal jurisdic-
tion to the EACJ per se was not a bad idea. Assuming that the proposal materi-
alized and that such jurisdiction was exercised robustly in respect of the crimes
committed during the post-election violence in Kenya, the EACJ would have prob-
ably been able to minimize the impunity gap created by Kenya’s failure to insti-
tute proceedings at national level against main suspects other than those officially
indicted by the ICC.
However, it is doubtful if the proposal to extend the jurisdiction of the EACJ in
this regard was informed by good faith. In fact, it was alleged that although the
resolution to do so was initiated by a member from Uganda, it was sponsored by
Kenya whose President was then chairing the EAC General Assembly. It is no

254 Cf. Abass 2013a, pp. 941–943. This is contrary to the contention (see Murungu 2011,
pp. 1075 et seq.) that such regional courts would be incompatible with the ICC Statute.
255 Cf. Murungu 2011, p. 1081.
wonder, therefore, that commentators dismissed the proposal as yet another tactic
of the Kenyan government to “rescue” the suspects facing trial at The Hague.256
Indeed this appears to have been the case, given that when it became clear that the
ICC would not “transfer” the cases to the EACJ, firstly because there was no legal
basis to do so and secondly, because the ICC did not seem have any trust in the
move, the speed and vigour to create the said criminal chamber faded and the
whole idea was abandoned altogether.
In conclusion, the prospects of Kenya being able to rely on the anticipated
African regional criminal jurisdictions thereby “avoiding” the ICC remained hard
to realize as the ICC cases proceeded to trial. However, the regional jurisdictions
would not have been completely useless if they materialized, since they would
still help to address the impunity gap already created by Kenya’s failure to hold
criminally accountable the main suspects of the crimes linked to the post-election
violence. They would also provide useful forums for addressing similar crimes
committed elsewhere in Africa.
6.6.3 Threats to Withdraw from the ICC Statute
Another domestic response to the ICC process emanated from Kenya’s Parliament
which, using its legislative mandate, tried to exert pressure on the Executive to with-
draw from the ICC Statute. On 16 December 2010, 1 day after the six suspects were
named, Mr. Isaac Ruto (MP) presented a motion to Parliament asking it to pass a
resolution to the effect that Kenya should “undomesticate” the ICC Statute, and con-
sequently withdraw from it. The motive of this drastic measure was expressly stated
in the motion as being to ensure that Kenya was “immediately released from any
obligation” it had committed herself to under the Statute. In addition, the Parliament
was asked to also resolve that the government must “suspend any links, cooperation
and assistance” to the ICC.257 Ironically, the MP who moved this particular Motion
and most of the other MPs who supported his motion were from the group of MPs
who, before the six suspects were named, had campaigned vigorously in favour of
the “The Hague option”, and who blocked the efforts to create the proposed local
special tribunal.258 It is therefore relevant to briefly outline the basis and conse-
quences of a state’s withdrawal from the ICC Statute before proceeding to evaluate
the implications that would have resulted from Kenya’s withdrawal.
256 Al Shahid, 1 May 2012.

257 Parliament of Kenya 2010a, pp. 30–45; and Parliament of Kenya 2010b, pp. 66–83.
258 See supra Sect. 3.5.3.
6.6.3.1 Basis and Consequences of Withdrawal from the ICC Statute
The ICC Statute, just like any other treaty, is subject to the Vienna Convention on
the Laws of Treaty. States are free to sign, ratify or accede to the Statute just like
they are also free to withdraw from it. On this basis, Article 127 of the Statute pro-
vides that a State Party can withdraw from the Statute any time it wishes to do so.
The provision also lays down the procedure and consequences of such a with-
drawal. It indicates that the withdrawal does not take effect immediately; it only
becomes effective at least 1 year after the withdrawing state has given a written
notice.259 Also, the withdrawal does not relieve the withdrawing State from its
obligations arising when the State was still party to the Statute. In particular, the
withdrawing State will remain duty-bound to cooperate with the ICC with regard
to any proceedings as long as such proceedings “were commenced prior to the
date on which the withdrawal became effective”. In addition, such a withdrawal
does not bar the ICC from continuing to consider any matter which was already
under the ICC’s consideration “prior to the date on which the withdrawal becomes
effective”.260
6.6.3.2 Response by Kenya’s Executive: No Withdrawal
Despite the above-mentioned parliamentary resolution, Kenya did not withdraw

from the Statute. The Executive chose to take a wiser and less drastic approach to
this matter by making a rational exercise of its exclusive powers to enter into and
withdraw Kenya from treaties. Under Kenya’s constitutional legal order which
existed then, the Parliament did not have much say as regards ratification of,
accession to, or withdrawal from, treaties.261 Even though the motion to withdraw
from the Statute was endorsed by Parliament, the Executive refused to align itself
with the whims of Parliament. The official position taken by the government
(Executive) was that instead of withdrawing from the Statute, it would rely on the
other options available under Articles 19 (admissibility challenge) and 16 (deferral

260 ICC Statute, Article 127(2). This is in line with Article 70(1)(a) of the Vienna Convention on
the Law of Treaties which provides that unless the parties otherwise agree, termination of a treaty
“does not affect any right, obligation or legal situation of the parties created through the execu-
tion of the treaty prior to its termination”.
261 But currently under Kenyan Treaty Making and Ratification Act No. 45 of 2012, Part III,
ss. 7–12, both Parliament (lower house) and Senate (Upper House) clearly have a say in the rati-
fication of international treaties, such that if the two Houses do not approve ratification of a treaty
proposed by Executive, such a treaty cannot be ratified. However, this legislation is not clear as
regards the role of the two Houses in relation to withdrawal from treaties.
request) of the Statute, respectively.262 As shown above, these were the means pur-
sued by the Kenyan government, although both means were unsuccessful.263
6.6.3.3 Practical Implications of Withdrawal from the Statute
It might appear that the Kenyan Parliament did not appreciate fully the implica-
tions of withdrawal from the Statute. One could think that it was naive or even stu-
pid for the MPs to believe that such a withdrawal per se would have
“immediately” released Kenya from “any obligation” under the Statute, or that it
would have “immediately suspend[ed] any links, cooperation and assistance” to
the Court. This is because, the assumption under Article 127 of the Statute is
already that Kenya would have remained duty-bound to cooperate with the Court
with regard to the two cases, and also with regard to any other cases that the
Prosecutor might have derived from the situation within the 1-year period pending
Kenya’s withdrawal notice to take effect.264
However, going beyond the face value of the provisions of Article 127, one will
agree to the submission that had Kenya withdrawn from the Statute, such a with-
drawal would have had serious negative practical implications on the ICC process.
By and large, this is what the Kenyan MPs wanted to achieve. They were aware
that Kenya’s obligation to continue to cooperate with the ICC would have remained
more theoretical than practical after such a withdrawal, since that the ICC would
not have sufficient means to enforce cooperation. Given that the Kenya situation
emanated from a proprio motu investigation and not a Security Council referral,
after such a withdrawal from the Statute, the ICC’s activities in Kenya would have
continued to depend entirely on Kenya’s willingness to cooperate with the ICC vol-
untarily and in good faith. However, voluntary cooperation from the existing
Kenyan government would have remained a mere fallacy. Such a “protest with-
drawal” in itself would have been an unequivocal gesture that Kenya was officially
unwilling to cooperate with the ICC. This could result in a complete paralysis or
frustration of the ICC’s activities in Kenya, especially with regard to in situ investi-
gations, witness protection, arrest and surrender of the suspects (if necessary), etc.
262 See Statement of the Government of Kenya on the ICC Process in Parliament of Kenya
2010a, pp. 23–45. Although this was the official position of the Kenyan government, it was still
reported that subsequently, Kenya attempted to solicit a mass withdrawal of African countries
from the Statute. See Akande 2011; The Standard, 10 January 2011.
263 NB. In September 2013, immediately prior to the original date set for the commencement of
trials in respect of the Kenyan President and Deputy President at the ICC, the Kenyan Parliament
and Senate passed another resolution to withdraw Kenya from the Statute. However, this move,
too, did not result in a withdrawal.
264 Cf. Heller 2010. For greater detail see Clark 2008, pp. 1178–1179.
Experience from other areas in Africa already indicates that when the position of
the states in which the crimes were committed clashes with that of an international
tribunal prosecuting the crimes and with which the states are expected to cooper-
ate, such states tend to take deliberate efforts to frustrate the activities of the
respective tribunal. There are clear precedents with regard to the activities of the
ICTR in Rwanda265 and those of the ICC in Darfur, Sudan.266
To sum up, it can be reiterated that any thinking that Kenya’s withdrawal
from the Statute would not have affected the ongoing ICC process is not entirely
correct.
6.7 The Future of the Kenyan Cases at the ICC
Upon the confirmation of the charges against four out of the six suspects on 23
January 2012, the prospects that the ICC’s process in Kenya could be halted through
legal means faded drastically. The last attempt to halt the process was lost on 24
May 2012 when the four appeals filed by the four accused challenging the confirma-
tion of charges against them were unanimously rejected by the Appeals Chamber.267
However, as the preparations for their trial were underway, new developments with
both obvious and potential implications on the ICC process emerged and introduced
more complications and (potential) challenges to the process.
265 E.g.,on 3 November 1999 the Appeals Chamber of the ICTR dismissed the indictment of
Jean-Bosco Barayagwiza on procedural grounds thereby ordering his “immediate release”. See
Decision, Barayagwiza ICTR, Appeals Chamber, 3 November 1999. The government of Rwanda,
which was interested in having Barayagwiza punished for his alleged role in the 1994 genocide,
was infuriated with this decision. It stated expressly that unless Barayagwiza was tried by the
Tribunal, Rwanda would no longer cooperate with the ICTR. The Appeal Chamber’s decision
was reinstituted 4 months later upon review by the Appeals Chamber on the basis of “new facts”.
See Decision, Barayagwiza (ICTR-97-19-AR72), 31 March 2000. However, the period between
the dismissal of the indictment and the reinstitution of the case was hard for the ICTR Prosecutor
as regards in situ investigations of other cases. The Prosecutor told the Appeals Chamber that in
view of Rwanda’s express unwillingness to cooperate, she had been denied visa to enter Rwanda,
and that 16 witnesses in other cases pending before the ICTR were stopped by Rwandan authori-
ties from testifying before the Tribunal. See Jalloh 2010.
266 After the indictment of Al Bashir, the Sudanese government is alleged to have told the
ICC Prosecutor that “if you send an investigation team, you may already prepare a second one
because the first one will not survive”. See Ambos 2007, p. 68.
267 Decision on the Appeals of Ruto and Joshua Sang against the Pre-Trial Chamber’s deci-
sion on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-414), AC, 24
May 2012; Decision on the Appeal of Muthaura and Kenyatta against the Pre-Trial Chamber’s
Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-425),
AC, 24 May 2012.
6.7 The Future of the Kenyan Cases at the ICC 241
6.7.1 Election of the ICC Suspects to Presidency
The most important domestic development came with Kenya’s March 2013 presi-
dential election. In this election, two of the ICC suspects, Uhuru Kenyatta and
William Ruto, were elected Kenya’s President and Deputy President, respectively.
The early indications that Kenyatta and Ruto might ascend to power had been seen
since the end of 2012 when the two formed separate political parties, The National
Alliance (TNA) and the United Republican Party (URP), respectively. Initially,
both of them were endorsed by their respective parties as presidential candidates.
However, later, the two parties formed a pre-election coalition (alliance) and
named it “the Jubilee Alliance”. Eventually, the Jubilee Alliance nominated Uhuru
Kenyatta as its presidential candidate and William Ruto as Kenyatta’s running
mate (deputy presidential candidate) for the 2013 elections.268
The coming together of Kenyatta and Ruto, who in the 2007 presidential elec-
tion were in opposing camps, has been described, and correctly so, as “an oppor-
tunistic alliance of convenience”.269 It has been argued that had it not been for the
common plight facing them at the ICC, the two would not have allied together.
The reason is that the relationship between their respective ethnic communities,
Kikuyus and Kalenjins, was still sour, given that these are the two communities
whose members unleashed attacks against each other during the post-election vio-
lence, and that the two communities have since then not been reconciled.270
The Kenyatta–Ruto alliance could also be described as a “marriage of conveni-
ence” in the light of the ethinicized nature of the Kenyan politics. It has been
shown in Chap. 2 that many people in Kenya vote almost “blindly” for a candidate
as long as such candidate is from the voter’s ethnic community, and that based on
the ethnic composition of Kenya’s population, there is no possibility of any single
ethnic group or tribe to determine decisively the outcome of a presidential elec-
tion, even if all votes from members of the respective tribe were to be cast in
favour of one candidate (see supra Sect. 2.4.2). On the basis of this state of affairs,
formal and informal ethno-political alliances have become increasingly inevitable.
It is agreed widely that the Kenyatta–Ruto alliance, which brought together mostly
Kenyatta’s Kikuyu and Ruto’s Kalenjin communities, was an important strategy in
this regard, as it assured the duo of what newspapers in Kenya commonly referred
to as a “tyranny of numbers”. This simply refers to a number of voters which is
big enough to guarantee an outright victory in the first round of the presidential
election or in the run-off, if any. It is on this basis that upon its creation, opinion
polls described the Kenyatta–Ruto alliance as a “firm” and “formidable force” that
was poised to win the election. The polls placed Uhuru Kenyatta neck to neck to
268 Daily Nation, 23 December 2012.

269 See Mueller 2014, p. 25.
270 See Daily Nation, 28 January 2012; Daily Nation, 24 November 2012; The Star, 23 February
2013.
Raila Odinga, who was also a presidential candidate of yet another ethno-political
alliance, the Coalition for Reforms and Democracy (CORD).271
These developments gave rise to many questions ahead of the presidential elec-
tion. These questions entailed uncertainties and speculations about the fate of the
Kenyan cases before the ICC in the event that Kenyatta and Ruto were elected to
office.272 In particular, the following questions emerged:
1. Would Kenyatta as president and Ruto as deputy president continue to appear
voluntarily before the ICC?
2. Would their government cooperate with the ICC, for example, with regard to
investigations and witness protection?
3. If one or both of them were convicted, what implications would this have
domestically?
4. What would happen if, for any reason, the ICC replaced the summonses to
appear with arrest warrants?
5. What implication would a Kenyatta–Ruto government have on Kenya’s diplo-
matic and international relations?
Again, the answers that the ICC Statute provides for some of the questions above
seemed to be more theoretical than realistic in light of the political context of
Kenya. For example, it is clear that Article 27 of the ICC Statute provides that the
official capacity of a person as, for example, president or deputy president, does
not bar the ICC from prosecuting such a person. But this provision in and of itself
is not a guarantee that such official capacity will not be used to impair or frustrate
the ICC process, especially by creating a difficult environment for the Prosecutor
to, among other things, conduct a successful in situ investigation. Already the
Al-Bashir precedent amply proves this. Thus, although the new ICC Prosecutor
Fatou Bensouda reiterated the principle under Article 27 by stating that “the trials
[against Kenyatta and Ruto would] go on irrespective of the outcome of the
[upcoming] political process”,273 she could not have been oblivious to the fact that
the Kenyatta–Ruto presidency would have the potential of complicating or even
negatively affecting her case in such circumstances.
On their part, Kenyatta and Ruto confirmed repeatedly that even if they won the
presidential election, they would want to continue cooperating with the ICC volun-
tarily by, inter alia, attending the trial sessions as scheduled and required, in order
271 E.g. see, Ipsos Synovate 2013, International Crisis Group 2012, pp. 13–16; Kenya
Citizen Tv, Dissecting the Opinion Polls, video published on You Tube, 19 February 2013
http://www.youtube.com/watch?feature=player_embedded<&v=ROyf9H929eY#. Viewed
September 2014.
272 See, for example, Kenya National Dialogue and Reconciliation Monitoring Project 2013,
para 77; International Crisis Group 2013, pp. 17–19; International Commission of Jurists et al.
2012; The Standard, 20 December 2012.
273 The Standard, 20 December 2012.
“to clear their names”.274 Despite this “assurance”, commentators speculated that
Kenyatta and Ruto would continue to cooperate with the ICC only if they were
convinced that the trials were in their favour.275 In general, the “fear” that their
government would or could frustrate the cases at the ICC was real. This kept the
ICC and other stakeholders of international criminal justice also worried.
Moreover, their presidential bid elicited different reactions from the ICC
Presidency, Western countries and Kenyan civil society.
For example, pursuant to the unfolding political developments in Kenya, Judge
Sang-Hyun Song, President of the ICC, was almost certain that the ICC was head-
ing towards a huge dilemma with regard to the Kenyan cases. He is on record hav-
ing desperately stated: “We don’t know what is going to happen. At the moment, I
must admit that the logistic aspect of the Kenya case … is not necessarily
easy”.276 On his part, Johnnie Carson, the US Assistant Secretary of State for
African Affairs, stated that the duty to elect leaders in Kenya rested with the
Kenyan electorate. However, he “reminded” Kenyans that “choices have conse-
quences”.277 Similarly, the French Ambassador to Kenya stated that, as a matter of
policy, France and the European Union as a whole would only maintain “essential
contact” with the ICC suspects in case they were elected.278 Some commentators
interpreted these statements as “blackmail” from the respective Western countries
whose favourite candidate was allegedly Raila Odinga.279
The anxiety above made civil society groups in Kenya to take a legal action.
They filed a constitutional petition in the Kenyan High Court challenging the
constitutionality of the endorsement by the Kenya Independent Electoral and
Boundaries Commission (IEBC) of Kenyatta and Ruto to stand for elective posi-
tions in the 2013 presidential election irrespective of the serious charges facing
them at the ICC. This case is popularly known as “the integrity case”.
6.7.2 The Integrity Case
The case, which was decided on 15 February 2013, emanated from four petitions
by two individuals and four NGOs filed at the end of 2012. Among other things,
the petitioners wanted the High Court to bar Kenyatta and Ruto from standing for
elective positions in the upcoming (2013) general elections, because they allegedly
lacked the required integrity on account of the serious criminal charges facing
274 See, e.g. Standard Group, Kenya Presidential Debate 2013 [Full Video], published on You
Tube, 12 February 2013 http://www.youtube.com/watch?v=i89bSa88dOE. Viewed September

2014; International Crisis Group 2013, p. 17.
276 Daily Nation, 13 February 2013.
279 See, New Vision, 10 April 2013.
them before the ICC.280 The basis of the petition was the “leadership and integ-
rity” provisions under Chapter 6 of Kenya’s 2010 Constitution, which require,
among other things that the exercise of authority granted to State officials be done
in a manner that “brings honour to the nation and dignity to the office”281; that the
exercise of such authority must promote “public confidence in the integrity of the
office”282; and that the selection of State officials be entrusted with such authority
must be done “on the basis of personal integrity, competence and suitability”.283
The petitioners argued before the High Court that the ICC had confirmed the
charges against Kenyatta and Ruto because there were reasonable grounds to
believe that the two had been either “contributors or co-perpetrators” of crimes
against humanity. As a result, their election to office of president or deputy presi-
dent would “not bring honour to the nation or integrity to the office”.284 It was
argued that following the confirmation of charges and committal of Kenyatta and
Ruto to trial, the duo would have, as a matter of requirement under the ICC
Statute, to attend the hearings of their cases at the ICC in person and on “a full-
time basis”.285 This, it was argued, would make the duo unable to discharge their
constitutional duties (if elected) properly, especially due to their physical absence
from the country when attending trial.286 In addition, it was argued that if for any
reason the ICC decided to issue warrants of arrest against the two after being
elected to office, Kenya’s sovereignty would be greatly undermined.287 On these
grounds, the petitioners asked the court for, inter alia, the following reliefs:
• A declaration that the presumption of innocence in favour of Kenyatta and Ruto
did “not override or outweigh the overwhelming public interests” to uphold the
Kenyan Constitution288;
• A declaration that for individuals committed to trial for such heinous interna-
tional crimes to be allowed to hold public office, it would be “a recipe for anar-
chy and perpetuate the culture of impunity” in Kenya289; and
• An order that Kenyatta and Ruto be permanently barred from being nominated
for elections for “engaging in acts of violence, other crimes and strife contrary
to the Constitution”.290
280 The International Centre for Policy and Conflict and 7 Others v. The Hon. Attorney General
and 4 Others, [2013] eKLR (hereafter “Integrity Judgment”).
281 Constitution of Kenya of 2010, Article 73(1)(a)(iii).
282 Ibid., Article 73(1)(a)(iv).
283 Ibid., Article 73(2(a).
284 Integrity Judgment, paras 13 and 41.
286 Integrity Judgment, paras 15, 38 and 39.
287 Ibid., para 16. For petitioners’ arguments on sovereignty see para 40.
288 Ibid., para 17.
289 Ibid.
290 Ibid., para 23.
As expected, Kenyatta and Ruto opposed the petition vigorously, arguing that
they had the right to be presumed innocent unless they were proven guilty.291
Agreeing to their argument, a bench of five High Court judges held unanimously,
and correctly, that the end of a confirmation of charges hearing at the ICC was not
in and of itself the end of the cases against the two, and for that reason, the final
outcome of the trial could not be predicted; that despite the very serious nature of
the charges confirmed against the respondents, the presumption of innocence
worked in their favour no matter what the end result of the trial might be; and that
the Kenyan judiciary did not have the mandate to interfere with the right of
Kenyan citizens to choose freely whoever they wanted as their leaders, just as the
judiciary also could not rely on speculations as regards the outcome of the cases at
the ICC to deny or deprive Kenyatta and Ruto of their constitutional right to seek
political leadership at the domestic level.292 The Kenyan High Court thus cleared
Kenyatta and Ruto to stand for the elective positions they desired.
Given the key role they played during the adoption of the ICC Statute, there is
no doubt that NGOs are still important stakeholders in pushing for the realization
of the ICC agenda, i.e. fighting impunity for the international core crimes. The
integrity case should therefore be viewed partly in this context. This was a second
time that NGOs in Kenya tried to persuade the domestic courts to uphold certain
constitutional values and practices taking into consideration Kenya’s commitment
to international criminal justice envisaged by the ICC Statute. The first time this
happened was when an NGO successfully asked the High Court to issue order that
the Kenyan authorities must make sure that they arrest the Sudanese President
Omar Al-Bashir if he ever sets his foot in Kenya again in view of the pending ICC
arrest warrants against him.293 The case was filed after Kenya had invited and
hosted President Al-Bashir during the promulgation of Kenya’s new Constitution
in blatant defiance of its obligations under the ICC Statute and the UN Charter.
However, as NGOs continue to spearhead the ICC agenda, it is important to
keep in mind that the fundamental individual rights accruing to those suspected to
have violated the ICC Statute cannot be extinguished or dispensed with. It is on
this basis that the petition seeking to bar Kenyatta and Ruto from vying for elec-
tive positions merely on account of the charges facing them at the ICC lacked a
firm legal foundation. The presumption of innocence is a fundamental right that
even the ICC itself has to uphold.294 Similarly, at Kenya’s domestic level, the pre-
sumption of innocence is one of the rights that constitute the elements of a fair
trial, and according to Article 55(c) of the 2010 Kenyan Constitution, such rights
cannot be subjected to any limitations whatsoever. The petitioners’ argument sug-
gesting that the ICC’s evidentiary standard for confirmation of charges should

292 Ibid., paras 154–156 and 168(d).
293 See Kenya Section of the International Commission of Jurists v. Attorney General and
Another [2011] eKLR.

have overridden the presumption of innocence is not legally tenable, given that
even at the ICC level, a confirmation of charges hearing is not a result of a trial or
even a mini trial.295 The presumption of innocence can only be rebutted if the
charges have been proved “beyond reasonable doubt” pursuant to a full trial.296
However, if viewed from another angle, namely from a perspective which is not
purely legal, the integrity case was not completely without merit. It clearly falls
under the general question of moral integrity which, even though it did not pass
the legal thresholds under the Constitution, cannot or should not be ignored com-
pletely. In most mature democracies, a person facing criminal charges already con-
firmed by such a reputable court like the ICC would usually be relieved of (or
resign from) public or official duties (if he or she holds any), or cannot be
entrusted with any such duties until his or her name is cleared. This does not have
to wait for a total rebuttal of his or her presumption of innocence. However, in
most cases, this is usually not a legal requirement or process, but a practice based
purely on moral standards or principles of good governance. But in Kenya this was
not the case: the respective political parties of Kenyatta and Ruto decided to close
their eyes to this fundamental practice and went on to endorse the duo to run for
the highest public office. At this stage, the hands of the judiciary were tied: it did
not have any powers to deny them their democratic right to vie for elective posi-
tions. It remained entirely up to the Kenyan electorate to use their power through
the ballot box to bar Kenyatta and Ruto from ascending to presidency, if at all they
(voters) felt that the duo were too “tainted” to become their top leaders.297 But it is
the opposite which happened.
Against all odds, on 4 March 2013, Kenyatta won the presidential election by
garnering 50.07 % of all the votes cast. Subsequently, the validity of his victory
was endorsed by the Supreme Court after being legally challenged by his main
opponent.298 Ultimately, Kenyatta and Ruto were sworn in on 9 April 2013 as
Kenya’s President and Deputy President, respectively.299 This intensified the con-
cerns about the fate of the cases at the ICC, especially with regard to the issues of
state cooperation.
295 Decision on the Confirmation of Charges, Katanga and Chui (ICC-01/04-01/07-717), PTC,
30 December 2008, para 64.
297 Cf. See Decision on Ruto’s Request for Excusal from Continuous Presence at Trial, Ruto and
Sang (ICC-01/09-01/11-777), TC, 18 June 2013, para 96 (in which the Trial Chamber stated that
“it is not…a valid legal proposition that a person charged with a crime may neither run for public
office nor be elected as such, even as he enjoys the presumption of innocence until found guilty
beyond a reasonable doubt …. Such a proposition requires a clear and solid basis in the law. The
Chamber is unaware of any norm of international law that supports such a bar”).
298 See Raila Odinga v. the Independent Electoral and Boundaries Commission and Three
Others, Petitions No. 5, 4 and 3 of 2013, Supreme Court at Nairobi, [2013] eKLR.
299 BBC News, 9 April 2013.
6.7.3 Cooperation from the Kenyan Government
Several concerns about Kenya’s willingness to cooperate with the ICC had already
arisen even before Kenyatta and Ruto were elected to presidency. At the end of
2012, the new ICC Prosecutor Fatou Bensouda visited Kenya where she met with
the leaders of the then coalition government to discuss issues pertaining to cooper-
ation with the Court. However, subsequent to her visit, she constantly expressed
frustrations, claiming that the Kenyan government was not giving “full coopera-
tion” to her Office. In particular, she claimed that Kenya had denied her Office the
required access to key documentary evidence and witnesses. She further alleged
that key witnesses that the Prosecution expected to use during trial had been
killed, intimidated, or bribed.300
On 11 March 2013, barely a month before the date originally set for the com-
mencement of the trial of the two Kenyan cases, the Prosecutor withdrew all
charges against Francis Muthaura,301 because “a critical witness [had] recanted a
significant part of his incriminating evidence after the confirmation decision was
issued, and [had] admitted accepting bribes from persons allegedly holding them-
selves out as representatives of [Muthaura and Kenyatta]”.302 As a result of this
withdrawal, the case to which Muthaura was a party remained with Kenyatta as
the only accused person.
Many more witnesses in both cases withdrew their evidence, especially after the
election of Kenyatta and Ruto to presidency. By 15 May 2013 a total of 13 wit-
nesses on whose testimony the Prosecution had expected to rely during trial had
withdrawn their evidence.303 In what suggested that the situation was becoming
more complicated, one of the trial judges, Judge Christine Van den Wyngaert, with-
drew from the Trial Chamber for the Kenyan cases.304 Before withdrawing, the
judge had complained, inter alia, about “the Prosecution’s negligent attitude towards
verifying the trustworthiness of its evidence” from witnesses.305 Another develop-
ment in this regard occurred on 2 October 2013. On this date, the Pre-Trial Chamber
unsealed an arrest warrant issued under seal on 2 August 2013 against Walter
Barasa, a Kenyan journalist, accusing him of being part of “a network of people”
allegedly operating a “wide scheme” to “sabotage” the Ruto and Sang case. Barasa
has been indicted officially under Article 70 of the ICC Statute with “corruptly
300 Daily Nation, 8 February 2013; Daily Nation, 27 February.

301 The Guardian, 11 March 2013.
302 Prosecution Notification of Withdrawal of the Charges against Francis Muthaura, Muthaura
and Kenyatta (ICC-01/09-02/11-687), TC, 11 March 2013, para 11 and Decision on the
Withdrawal of Charges against Muthaura, Muthaura and Kenyatta (ICC-01/09-02/11-696), TC,
18 March 2013.
303 Daily Nation, 11 May 2013; Capital News, 5 April 2013.
304 See also Aljazeera, 27 April 2013.
305 Concurring Opinion of Judge Christine Van den Wyngaert (annexed to Decision on Defence
Application pursuant to Article 64(4) and Related Requests) Kenyatta (ICC-01/09-02/11-728-

Anx2), TC, 26 April 2013.
influencing” or “attempt to corruptly influence” prosecution witnesses so that they

withdraw from the case.306 More recently, in May 2014, there was an assassination
attempt on Maina Njenga, the former leader of the Mungiki gang, the “organization”
which is at the centre of the Kenyatta case (see supra Sect. 6.4.2.3.1.2). Subsequent
to this assassination attempt, Njenga claimed before a press conference that the
police (government) were behind his shooting, as they had discovered that he had
recorded a statement with the ICC and that he could have been lined up as one of
the Prosecution’s witnesses at the ICC. He even claimed that he had previously been
approached by a senior politician who urged him not to testify before the ICC.307
6.7.4 ICC’s Relationship with the AU in View of the Kenyatta

and Ruto Cases
Another interesting issue concerning the Kenya situation before the ICC emerged
6 months after Kenyatta and Ruto were sworn in as Kenya’s President and Deputy
President, respectively. On 12 October 2013, the AU Assembly (Heads of State and
Government) convened in Addis Ababa, Ethiopia, for an Extraordinary Session
to discuss “Africa’s relationship with the ICC”, and in particular, to articulate the
“AU’s position” with regard to the trial of Kenya’s President and Deputy President.
This meeting was preceded by a meeting of the AU’s Executive Council (Foreign
Ministers) held on 11 October 2013. This development came exactly 1 month
before 12 November 2013, the date on which Kenyatta’s trial was expected to
commence and almost 1 month after the trial of Ruto and Sang had commenced.
Although it had been speculated initially that the issue of “mass withdrawal” of
African states from the ICC would be discussed, it became clear after the Session
that such a topic was not on agenda.308 Instead, two main issues were discussed
with regard to the ICC. The first issue generally concerned the manner in which
the UN Security Council had hitherto dealt with the concerns raised by the AU in
relation to the ICC and particularly with respect to the previous deferral requests
by Sudan and Kenya that had been fully backed by the AU (see supra Sect. 6.6.1).
The second issue was similar to the first: it concerned the manner in which the
ICC had hitherto treated Africa and Africans in general and Kenya in particular.
As regards the second issue above, the AU expressed serious “disappointment
against the ICC and its selective approach vis-a-vis Africa”. It further condemned
the manner in which the ICC has arguably continued to “treat Africa and Africans in
306 See Warrant of Arrest, Walter Barasa (ICC-01/09-01/13-1-Red2), PTC, 2 August 2013. Up
until August 2014, Barasa, who had been arrested by Kenyan authorities, had not been transferred
to the ICC. His transfer was still a subject of legal contestation before the Kenyan Courts.
307 See “Former Mungiki Boss Links Attempt on His Life to ICC Ties” [video] K24TV, pub-
lished 30 May 2014 http://www.youtube.com/watch?v=bpe3sZ2R5Pk. Viewed September 2014.

See also The Star, 31 May 2014.
308 See Sudan Tribune, 12 October 2013.
a condescending manner”.309 This particular argument was given an impetus by

President Kenyatta, who delivered a strong-worded speech at the AU Extraordinary
Session.310 Kenyatta stated that the “Western powers are the key drivers of the ICC”,
because 70 % of the Court’s budget is currently “being funded by the EU”. He con-
sequently argued that “the threat of prosecution” by the ICC is being used as a tool
to make “pliant states execute policies favourable to these [Western] countries”.
Kenyatta also referred contemptuously to how the ICC Prosecutor had even pro-
posed “undemocratic and unconstitutional adjustments to the Kenyan Presidency”
on account of the ongoing proceedings against him (Kenyatta) and his Deputy.311
In line with Kenyatta’s sentiments, the AU lamented about the ICC’s lack of concern
about Kenya’s “legitimate argument” that, given their role as leaders of the Kenyan
government, Kenyatta and Ruto must be excused from attending all their trial sessions
in person. Kenya’s and the AU’s argument was that such excusal was necessary for the
duo to be able to balance, on the one hand, their obligations towards the ICC and, on the
other hand, their constitutional obligations towards the people of Kenya who elected
them as their leaders through a democratic process. However, the AU Chairman claimed
that by putting forward certain arguments and demands, the goal of the AU was neither
to support impunity in Africa nor to mount a “crusade against the ICC”. Rather, he
insisted, the AU was only making “a solemn call for the [ICC] to take Africa’s concerns
seriously”.312 It was in this context that at the end of the Extraordinary Session, the AU
Assembly came up with a Decision313 embodying, inter alia, the following controver-
sial pronouncements and demands that:
309 See Opening and Closing Remarks of Tedros Adhanom Ghebreyesus, Minister for Foreign
Affairs of the Federal Democratic Republic of Ethiopia and Chairperson of the Executive
Council of the African Union at the 15th Extraordinary Session of the Executive Council of the
African Union, 11 October 2013 http://www.au.int/en/content/extraordinary-session-assembly-
african-union. Accessed September 2014.
310 See Daily Standard, 13 October 2013 (reproducing fully Kenyatta’s speech at the
Extraordinary Session of the African Union).

311 Three weeks before Kenyatta’s speech, during the ongoing trial of William Ruto, the
Prosecution had suggested, through an oral submission to the Trial Chamber, that Mr. Ruto’s
functions of Deputy President of Kenya should be delegated to “an appropriate person” so that
his trial at the ICC could continue uninterrupted i.e. so that he would not have an excuse to ask
for frequent adjournments. The Prosecution was responding to Mr. Ruto’s request for a 1-week
adjournment so that he could go back to Kenya to assist the President to attend to an urgent mat-
ter, a deadly terrorist attack that had happened in Nairobi.
312 See Remarks by Mr. Hailemariam Dessalegn, Prime Minister of the Federal Democratic Republic
of Ethiopia and Chairperson of the African Union at the Extraordinary Session of the Assembly of
Heads of State and Government of the African Union, 12 October 2013, p. 7 http://www.au.int/en/
content/extraordinary-session-assembly-african-union. Accessed September 2014.
313 See African Union, Decision Ext/Assembly/AU/Dec.1(Oct. 2013).
• The indictment of African leaders by the ICC is a result of the politicization and
misuse of the Court314;
• Continuing with the indictment against Kenyatta and Ruto while they are serv-
ing Head of State and Deputy Head of State, respectively, can undermine, inter
alia, the sovereignty, stability, peace and reconciliation in Kenya, and that such
indictment per se contravenes the customary international law principle that
avails them immunity on the basis of their official positions. Consequently, the
AU demanded that the trial against Kenyatta and Ruto be “suspended until they
complete their terms of office”315;
• Since Kenya was at the frontline in the fight against terrorism at the national,
regional and international levels, the criminal proceedings against its top leaders
would “distract and prevent them from fulfilling their constitutional responsibil-
ities, including national and regional security affairs”. Consequently, the AU
instructed Kenya to make another deferral request to the UN Security Council
subsequent to which an AU’s high-profile delegation would be sent to the
Security Council to lobby in favour of Kenya316; and
• Pending the Security Council’s consideration of the deferral request, the ICC
must postpone the upcoming trial against Kenyatta and suspend the ongoing trial
of Ruto. The AU Assembly agreed that if this specific demand was not granted,
then President Kenyatta would “not appear” before the ICC until the AU’s con-
cerns were “adequately addressed by the UN Security Council and the ICC”.317
On 21 October 2013, Kenya filed its second deferral request to the Security
Council as “guided” by the AU. The request was accompanied by several support-
ing documents from the AU, including the above-mentioned AU’s decision. In its
request, Kenya made reference to “the threat to peace, breach of the peace or act
of aggression likely to transpire in light of the prevailing and continuing terrorist
threat in the Horn of Africa and Eastern Africa”. So Kenya requested that the situ-
ation be deferred so as “to prevent the aggravation” of the threat.318 The new argu-
ment, namely terrorism as a threat to peace and security, was triggered by the
terrorist attack carried out on the Westgate mall in Nairobi on 21 September 2013
by the al-Shabaab in which 67 people were killed.319
The Security Council met on 15 November 2013, but failed to adopt a resolu-
tion in favour of Kenya’s request. Although no member of the Council voted
against the request, only seven members320 voted in favour, while eight mem-
314 Ibid., para 4.

315 Ibid., paras 5, 9 and 10 (ii).
316 Ibid., paras 6 and 10 (iii) and (ix).
317 Ibid., paras 10(x) and (xi).
318 See UN Security Council 2013c.
319 See Mail Online, 22 September 2013.
320 Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda and Togo.
bers321 abstained from voting. This resulted in the lack of the requisite nine affirm-
ative votes to adopt such a resolution.322 It had been anticipated that Kenya’s
second deferral bid, just like the first bid, would fail. It had not been foreseen,
however, that the failure would result from abstentions. Three out the five perma-
nent members of the Security Council, namely the USA, the UK and France, had
already indicated expressly that they were opposed to Kenya’s request even before
the Security Council convened to deliberate on it.323 This had given indication that
Kenya’s deferral request would most probably fail as a result of the use of the veto
powers. Prospects of success had been such slim because the core of Kenya’s
argument, namely terrorism, is generally a global threat which is not necessarily
unique to Kenya. Indeed terrorism had become a problem to Kenya before the
indictment of Kenyatta and Ruto and more particularly even before their election
to office. So it was clear the effort to “capitalize” on the Westgate terrorist attack
might convince members of the Security Council to sanction a deferral.
On the other hand, the AU’s argument that the ICC should postpone the trial of
Kenyatta and Ruto until they finish their term of office was not legally tenable. As
argued elsewhere,324 Article 27 of the ICC Statute, which Kenya has ratified and
domesticated, states clearly that immunity for heads of state is not a bar (perma-
nent or temporary) from prosecution for the core crimes under international law. In
fact, even Kenya’s own Constitution categorically deprives the Kenyan President of
such immunity. Although the Kenyan Constitution generally grants immunity from
criminal prosecution to “the President or a person performing the functions of that
office”,325 such immunity does “not extend to a crime for which the President may
be prosecuted under any treaty to which Kenya is a party and which prohibits such
immunity”.326 In addition, postponing the trials on the basis of the Kenyatta-Ruto
presidency would have been unfair from the point of view of the victims of the
post-election violence. The reason is that although the first term of Kenyatta-Ruto
presidency will end in 2017, they are still eligible for, and will most likely seek, re-
election for another 5-year term to end in 2023. By the year 2023, some witnesses
will have either died or their memories about what occurred during the post-elec-
tion violence will have faded. This will ultimately affect the Prosecution’s case,
considering the high evidentiary standard required for criminal cases.
As indicated above, one of the decisions reached during the Extraordinary
Session of the AU Assembly urged the AU members who are States Parties to the
ICC Statute to use the forthcoming meeting of the ICC’s Assembly of States Parties
(ASP) to propose “relevant amendments” to the ICC Statute that would address the
321 Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, UK and USA.
322 See UN Security Council 2013b.
324 See Materu 2014.
AU’s demands and concerns.327 One concern that had particularly troubled both
Kenya and the AU revolved around Article 63 of the ICC Statute which provides,
inter alia, that “the accused shall be present during trial”. Upon their election as
Kenya’s President and Deputy President, it became increasingly concerning that
Kenyatta and Ruto’s physical absence from the country while attending the trial at
the ICC would distract them from performing their constitutional obligations effec-
tively. In trying to address this concern, their defence teams had, before the above-
mentioned AU Session, strived to have the presence requirement under Article 63
interpreted in a manner that would have excused their clients from being required to
always be “physically present” in the courtroom during trial. They had argued for an
interpretation that would have allowed either attendance via video link or attendance
through counsel.328 The Trial Chamber rejected the idea of trial or attendance via
video link, but agreed to grant a conditional excusal to both Kenyatta and Ruto from
continuous physical presence during trial on account of their “domestic public
duties”. According to the Chamber, it was only mandatory for Kenyatta and Ruto to
attend physically some of the sessions specifically identified in the decision.329
However, this victory was short-lived. The Appeals Chamber overturned the Trial
Chamber’s decision by ruling that the physical presence of the accused at the trial is
mandatory during all sessions, save for strictly exceptional circumstances none of
which applied to Kenyatta or Ruto.330 The Appeals Chamber judgment caused more
frustration to Kenya and infuriated the AU.
According to Section 162 of Kenyan International Crimes Act of 2008, the ICC
“may sit in Kenya for the purpose of performing any of its functions under the ICC
Statute and under the ICC Rules, including (a) taking evidence; (b) conducting or
continuing any proceedings; (c) giving judgment in any proceedings”. In addition,
Section 163 of the same legislation provides that while sitting in Kenya, the ICC
“may exercise its functions and powers as provided under the Rome Statute and
under the ICC Rules”. In view of these provisions, it has been suggested that if the
physical absence of Kenyatta and Ruto from the country was truly the main con-
cern of the Kenyan government, the ICC could be asked, as a response to the con-
cern, to consider conducting its proceedings from Kenya, “so that the government
[could] keep functioning”.331 However, given the fact that the Kenyan government
327 See African Union, Decision Ext/Assembly/AU/Dec.1(Oct.2013), para 10 (iv) and (vii).
328 See e.g., Defence Request for Mr Kenyatta to be Present during Trial via Video Link,
Muthaura and Kenyatta (ICC-01/09-02/11-667), TC, 28 February 2013.
329 See Decision on Ruto’s Request for Excusal from Continuous Presence at Trial, Ruto and Sang
(ICC-01/09-01/11-777), TC, 18 June 2013; Decision on Defence Request for Conditional Excusal
from Continuous Presence at Trial, Kenyatta (ICC-01/09-02/11-830), TC, 18 October 2013.
330 See Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber on
Ruto's Request for Excusal from Continuous Presence at Trial, Ruto and Sang (ICC-01/09-01/11-
1066), AC, 25 October 2013; Decision on the Prosecution's motion for reconsideration of the
decision excusing Mr Kenyatta from Continuous Presence at Trial, Kenyatta (ICC-01/09-02/11-
863), TC, 26 November 2013.
331 See Kemp 2014, Sect. 6.6.1.
had already adopted a clear antagonistic stand towards the ICC, it is sufficient to
say that this suggestion was (and still is) simply impracticable.
However, it is noteworthy that the efforts by Kenya and the AU were not com-
pletely futile in every aspect. On 27 November 2013, amidst the mounting pres-
sure from the AU, the ASP adopted a resolution that amended the Rules of
Procedure and Evidence of the ICC.332 Among other things, the amendments
addressed the strict presence requirement under Article 63 and responded directly
to some of the AU concerns, particularly those arising in relation to Kenyatta and
Ruto trials. The new Rules not only allowed “presence through the use of video
technology”,333 but also made it possible for an accused person who has “extraor-
dinary public duties at the highest national level” to be excused from physical
presence at trial.334 On the basis of these new Rules, the Trial Chamber had to
issue a fresh decision in respect of Ruto, whose trial had already commenced,
excusing him from continuous physical appearance at the trial.335
Although the ASP did not address all the concerns raised by Kenya and the AU,
the amendment to the Rules was received positively by the AU Assembly in its
Ordinary Session of January 2014.336 The amendment was clearly a diplomatic
(and political) compromise which was made to “save” the ICC process in Kenya.
It sought to appease both Kenya and the AU by partly accommodating, albeit indi-
rectly, their interests. For that reason, the amendment can also be viewed as some
sort of “victory” for both Kenya and the AU. However, given the political environ-
ment that led to the adoption of the amendment, these questions arise: Where shall
the ASP stop? How often will similar compromises have to be made in future,
namely amendments that respond directly to specific political demands? It remains
to be seen whether such compromises are healthy for the future of the ICC, espe-
cially as regards the exercise of its judicial mandate.
6.7.5 Interim Conclusion
The trend of events analysed above suggests that despite Kenya’s and the AU’s
discontentment about the ongoing ICC process in Kenya, Kenyatta and Ruto will
continue to comply with the conditions imposed on them by the ICC, as they are
fully aware that they have been indicted in their personal capacities. The same
332 See Resolution ICC-ASP/12/Res.7, 27 November 2013: Amendments to the Rules of Procedure
and Evidence, adopted at the 12th Plenary Meeting of the ICC Assembly of States Parties.
333 See Ibid., Rule 134 bis.
334 See Ibid., Rules 134 ter and 134 quarter.
335 See Reasons for the Decision on Excusal from Presence at Trial under Rule 134 quarter,
Ruto and Sang (ICC-01/09-01/11-1186), TC, 18 February 2014.

336 See African Union Decision Assembly/AU/Dec.493 (XXII), January 2014, On the Progress
Report of the Commission on the Implementation of the Decisions on the International Criminal
Court, para 10.
trend of events suggests that Kenyatta and Ruto are not prepared to run the risk
of having their summonses to appear replaced with arrest warrants on account of
defiance of orders or conditions imposed on them by the ICC.
As the trials continue, evidence will continue to occupy a centre stage in the
whole ICC process. But even before the trial of the two cases commenced at the ICC,
the Prosecution’s case had already started facing enormous challenges with regard to
key witnesses.337 The allegations raised by the Prosecutor regarding bribery, intimi-
dation and killing of witnesses are not trivial at all. Apart from casting doubt on the
effectiveness the witness protection measures taken by the OTP, such allegations are
an embodiment of the frustrations and helplessness facing that office. So far there are
indicators that unless there is strong documentary evidence for the Kenyan cases at
the ICC, and unless the current trend of recantation of evidence by witnesses is
abated, the Prosecution’s case will continue weakening gradually o even completely
fall apart, especially with regard to the Kenyatta trial. The mere fact that in less than
2 months about 13 witnesses declared withdrawing their evidence could be a pointer
to some coordinated or deliberate efforts to accelerate a “natural death” of the cases.
The allegations that such efforts emanate from, or are sponsored by, some sources
within Kenya cannot be verified here neither can they be ruled out completely.
6.8 Impact of the ICC’s Intervention in Kenya
It has been stated that the ICC’s intervention in Kenya has already had both nega-
tive and positive impact at the domestic level, especially with regard to deter-
rence.338 When announcing the decision to open a proprio motu investigation into
Kenya, the ICC Prosecutor contended particularly that indeed the ICC’s interven-
tion was “the only way to prevent the commission of new crimes during the next
[2013] elections”.339 One notes that the 2013 general elections in Kenya were
unprecedentedly peaceful. The cycle of election violence (see supra Sect. 2.5.2)
was broken in these elections, even though the presidential seat was, like in the
2007 election, highly contested by two major ethno-political alliances. A question
that arises is whether this peaceful election could, as the Prosecutor hoped, be
truly attributed to the ongoing ICC process.
Indeed there could be many factors which contributed to this “breakthrough”,
but the contribution of the ongoing ICC process in this regard cannot be over-
stated. The ICC process per se made both ordinary citizens and the political elite in
Kenya appreciate the fact that any commission of crimes under international law in
Kenya, regardless of the motivation, is no longer an exclusive domestic affair of
337 Cf. Mueller 2014, pp. 33–35.

338 See Wanyeki 2012, pp. 15–19.
339 ICC Press Release ICC-OTP-20090716-PR439, 16 July 2009. See also “Ocampo’s statement
on Kenya” [video] published by NTV Kenya on You Tube, 1 April 2012 http://www.youtube.
com/watch?v=Pg4jxfsXT98. Viewed September 2014.
6.8 Impact of the ICC’s Intervention in Kenya 255
Kenya, and that the fight against impunity for such crimes is now the interest of
the international community as a whole. This realization is partly evident in the
overwhelming general support and confidence of ordinary Kenyan citizens, includ-
ing the victims of the 2007–2008 post-election violence, in the ongoing ICC pro-
cess (see supra Sect. 3.7). In addition, the fact that the ICC judicial process had
continued despite numerous efforts to derail it served as a clear and practical les-
son to many that even the Kenyan political elite or their allies, who are usually
considered to be too powerful for the domestic judicial system to hold accounta-
ble, are no longer “safe” as long as the “watchdog”, the ICC, exists. Given this
realization, the Kenyan political elite, media houses and individual citizens
behaved differently and more “decently” during the 2013 election period. Most of
them exercised restraint and avoided any thing that could incite ethnic violence
before, during or after the elections. It is in this regard that subsequent to the elec-
tions, the USA validated Prosecutor’s hypothesis by stating that the ICC process in
respect to Kenya had indeed contributed to the peaceful 2013 elections.340
In spite of the foregoing, it is impossible to conclude with certainty that the ICC
process in Kenya has achieved general deterrence as regards commission of crimes
under international law or gross human rights violations generally. In addition, is also
impossible to state with absolute certainty that the breakthrough that appears to have
been made in 2013, namely deterrence of election violence, will remain true in
Kenya’s future or whether it will remain only a specific attribute of the 2013 general
elections. There are two reasons for this uncertainty. The first reason is that the under-
lying issues and grievances, especially those pertaining to land and negative ethnicity,
which catalysed election violence in the past (supra Sect. 2.5), have not yet been
addressed comprehensively.341 The second reason for the uncertainty is the recurring
moves (threats) of Kenyan political elite to withdraw Kenya from the ICC Statute.
Assuming this retrogressive goal, namely withdrawal from the Statute, is ultimately
achieved, the ICC will cease to be an “immediate danger” to the political elite.342
This, in effect, could make them revert to their “old ways”, namely capitalizing nega-
tively on the existing societal differences and grievances to achieve their political ends.
6.9 Chapter Summary
The chapter has analysed the Kenya situation and cases before the ICC, more spe-
cifically its legal and political aspects. It has shown that Kenya was discontented
with the ICC’s intervention, and that it unsuccessfully tried to use political, legal
and diplomatic means to halt the ensuing process. However, as the trial per se was
340 See Daily Nation, 5 April 2013.

341 Cf. Wanyeki 2012, pp. 16–17.
342 Of course, this would not abate the “danger” that even after withdrawal from the Statute a
situation in Kenya could still be referred to the ICC by the UN Security Council. However, this
could be dealt with more easily by political means, including through lobbying.
underway, the cases shrank from the original six suspects to three suspects, and
more signs of Prosecution’s case weakening are increasingly becoming more evi-
dent by day, especially after two of the accused persons were elected as President
and Deputy President of Kenya. Besides, a new argument (or challenge), largely
political in nature, was introduced by the AU, which came up with several legally
untenable demands after the election of Kenyatta and Ruto to office.
The chapter has further shown that due to the prosecutorial discretion of the
ICC Prosecutor, the focus of the investigations in the Kenya situation has been
only on the crimes which have a direct nexus with the post-election violence,
although, in principle, on the basis of the material scope of the authorized inves-
tigation, the Prosecutor could have gone beyond the violence. Consequently, the
crimes alleged to have been committed in the Mount Elgon area, have escaped the
attention of the ICC Prosecutor.
From the jurisprudential point of view, the Kenya situation has been shown to
occupy a special place so far. Apart from being the first laboratory from which
the jurisprudence on the ICC’s proprio motu investigation emerges, the situation
has triggered a heated debate over an important issues of procedural and substan-
tive criminal law. The most prominent issue is how to interpret an “organizational
policy” in the definition of crimes against humanity per Article 7(2)(a) of the ICC
Statute. The chapter has clarified and analysed the arising legal issues and debate,
and has concluded that in interpreting the said provision of the ICC Statute, the
prospective nature of the ICC should play a role, and that in so doing the main
spirit of the Statute, namely the fight against impunity for the core crimes, should
override any unjustifiable restrictions.
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Chapter 7
Conclusion
Abstract This chapter carries a comprehensive summary of the book. It brings

together the main conclusions made in the preceding chapters. It also embodies
author’s recommendations.
The study has analysed the historical background and domestic and international
responses to the 2007–2008 post-election violence in Kenya. Its main focus has
been on the criminal accountability for the crimes against humanity committed
during the violence. The study was based on two legal premises. The first prem-
ise is that crimes against humanity, like the other core crimes under international
law, namely war crimes, genocide and aggression, has acquired a jus cogens sta-
tus, which has elevated it to a level above that of “ordinary” crimes that are usually
found in most domestic criminal codes. Consequently, commission of a core crime
is no longer a concern of one individual state (e.g. the state of commission) but of
the international community as a whole. The second premise, which flows directly
from the first, is that there is a clear consensus, a principle under international cus-
tomary law, which requires that impunity for the core crimes must not be tolerated.
The state on whose territory a core crime has occurred has a duty to investigate
and prosecute those who bear major responsibility for the crimes. If the state of
commission does not perform its duty, for example by remaining inactive, or when
it is unable or unwilling to conduct genuine investigations and prosecutions in its
domestic courts, then the ICC can justifiably intervene, in order to minimize the
looming impunity gap (supra Sect. 1.2). Kenya associated itself with this global
consensus by signing, ratifying and domesticating the ICC Statute.
The main objectives of the study were framed in terms of four specific ques-
tions. The first objective was to locate and analyse the link between Kenya’s post-
election violence and the country’s previous socio-political history with a view to
understanding prospects and challenges that could be faced when trying to address
criminal accountability for the crimes committed during the violence. The second
objective was to outline and analyse the structure and implementation of the road
map for criminal accountability that was agreed upon at the domestic level. This
includes identifying and examining other domestic legal options (frameworks) for

266 7 Conclusion
the prosecution of the core crimes under international law with a view to exam-
ining the extent to which Kenya has utilized the options to hold the perpetrators
of the post-election violence criminally accountable. The third objective was
to locate the link or interplay between retributive and restorative justice mecha-
nisms implemented in Kenya subsequent to the post-election violence, with a view
to establishing how such interplay could foster or impair the search for criminal
accountability for the crimes in question. The last objective was to evaluate the
ICC’s intervention in Kenya, particularly providing an extensive critical analysis
of the main legal issues linked to or so far arising out of such intervention. The
following are the main conclusions.
The background to the 2007–2008 post-election violence in Kenya can clearly
be traced to the country’s post-colonial history. Throughout the four decades in
which Kenya was under dictatorial regimes (1963–2002), the political leader-
ship was an imperial presidency based on a single party system. These successive
regimes deliberately used both tyranny and negative ethnicity, originally encour-
aged by the British colonialists, to consolidate power. During the dictatorial
regimes of the first two presidents, Jomo Kenyatta and Daniel Arap Moi, feelings
of ethnic and economic marginalization grew very strong among various com-
munities and individual citizens who perceived or believed that people from the
president’s community had more privileges than those from other communities
(supra Sects. 2.2 and 2.3).
Since the re-establishment of multi-party democracy in 1991, the emerging
political parties resorted to the formation of political (party) alliances which were
(still are) mere tribal outfits and which, in most cases, were (still are) expected
to champion interests of specific ethnic communities (supra Sect. 2.4). On the
basis of these unhealthy trends in the local politics, both the state and individual
politicians developed a culture of creating, sponsoring or exploiting exiting crimi-
nal gangs to perpetuate ethno-political agendas. This constituted a catalyst and
recipe for recurring electoral violence in 1992, 1997 and 2002. During such kind
of violence, atrocious crimes were always committed but no one was held crimi-
nally accountable, even though various commissions of inquiry recommended so.
The culture of impunity for crimes, especially those involving the political elite,
became an entrenched feature (culture) in the Kenyan politics (supra Sect. 2.5).
The same factors were responsible for the 2007–2008 post-election violence
which was, therefore, not a total surprise.
With the help of the AU mediation team, it was agreed in the aftermath of the
2007–2008 violence that the resulting crimes could only be dealt with meaning-
fully if addressed together with the historical factors that had previously divided
Kenyans and which had constituted a recipe for recurring election violence (supra
Sects. 3.2–3.4). So it was considered important that a multifaceted approach
involving a combination of various transitional justice mechanisms is taken.
Due to the fact that the atrocities committed seemed to have amounted to crimes
against humanity, and also because they occurred at the time when the interna-
tional community as a whole was against impunity for such crimes, a promising
road map was put in place to ensure that perpetrators, especially those who bear
7 Conclusion 267
major criminal responsibility for the crimes, were investigated, prosecuted and
punished primarily by Kenya itself or secondarily by the ICC if Kenya failed to do
so (supra Sects. 3.4.3 and 3.4.4).
Criminal accountability at the domestic level in respect of the alleged main
perpetrators has been bedevilled by politics, and has largely remained a myth—
a subject of mere talk. Kenya has failed to prosecute this group of perpetrators,
not because it lacks a sufficient domestic legal framework, but because it lacks
the political will to do so. Even though the attempts to create the agreed Special
(local) Tribunal to try the perpetrators failed, their conduct could still be punished
sufficiently if prosecuted under the Kenyan Penal Code as “ordinary crimes”.
Alternatively, the atrocities could even be prosecuted as “crimes against humanity”
as such under customary international law or Kenya’s International Crimes Act
of 2008 if some necessary legislative amendments were done (supra Sects. 4.3.1
and 4.3.2). However, given the knowledge gap among domestic prosecutors in
Kenya, it has been contended that the ordinary-crime approach remains the best
way to prosecute the crimes at the domestic level. Domestic courts in Kenya have
prosecuted many cases involving minor offences and a few other involving serious
offences, such as murder, under this approach. However, the main flaw with regard
to these prosecutions is that their primary target has been the direct (low-level)
perpetrators, while the main (high-level) perpetrators, who are accused in various
official reports to have been the architects and masterminds of the violence, have
hitherto remained untouched (supra Sects. 4.3.1.4.2 and 4.3.1.5).
As part of the domestic road map to peace, reconciliation and accountability,
the TJRC was created and given very broad temporal and subject-matter man-
dates, which covered, but purposely went beyond, the 2007–2008 post-election
violence (supra Sect. 5.2.2). In particular, the TJRC was given three mandates
which link directly to criminal accountability for the post-election violence, the
fact which makes them thematically relevant for purpose of this book. These are
broad powers to gather information; to recommend prosecution; and to propose
the granting of amnesty. As regards information gathering powers, the TJRC had
broad quasi-legal powers, such as powers to subpoena information and to com-
pel witnesses. As regards amnesty, the TJRC justifiably decided not to utilize its
mandate mainly because that mandate was rendered nugatory by the TJRC Act
which over-narrowed the scope of the proposed amnesty in terms of qualifying
acts. As regards the mandate to recommend prosecution, the TJRC indeed rec-
ommended further investigation and prosecution of 56 individuals who had been
named by other official reports as masterminds of the post-election violence (supra
Sects. 5.2.3.2–5.2.3.4).
No prosecutions have so far flowed directly from the TJRC recommendations.
But regarding the handling of TJRC’s information for purposes of possible future
trials, if any, the vast information gathered by the TJRC has the potential of either
facilitating or impairing domestic criminal accountability for the post-election
violence depending largely on how that information has been (or is) handled. On
the one hand, criminal trials conducted subsequent to TJRC’s dissolution, whether
or not they result from TRJC’s recommendations, can greatly benefit (in terms of
268 7 Conclusion
evidence) from the information in the archives of the TJRC, if (and only if) the
Kenyan judicial authorities are given access to such information and are willing to
utilize it. On the other hand, such future trials, if any, could also be badly impaired
or frustrated if too much self-incriminating information (e.g. through admissions
and confessions) was revealed to the TJRC. The reason is that such information
per se will no longer be admissible in court as evidence against the person who
gave it. The only useful part of the self-incriminating information, if any, is that it
can still be a good means for the Kenyan prosecutors and courts to locate further
(other) sources of evidence (see supra Sect. 5.2.3.5). However, whether or not the
Kenyan authorities will implement the TJRC’s report, particularly its recommen-
dation on prosecution, remains very doubtful.
The ICC’s intervention in Kenya is of historical significance as it was the first
time the ICC Prosecutor utilized his proprio motu powers to trigger the jurisdic-
tion of the Court. However, the then Prosecutor Moreno-Ocampo had preferred
a self-referral to a proprio motu intervention. However, for Kenya a self-referral
would have been a political miscalculation (see supra Sect. 6.2.3). Subsequent to
the ICC’s intervention, and more specifically from the time the ICC identified and
indicted part of the Kenyan political elite, Kenya started behaving in a manner that
clearly showed that it was discontented by the ICC’s intervention. The ICC’s inter-
vention was solely motivated by Kenya’s failure (inaction) to carry out its duty to
prosecute. It was for the same reason that Kenya’s admissibility challenge, which
was part of its efforts to keep the ICC away, was unsuccessful (supra Sect. 6.5).
Therefore, despite Kenya’s discontentment, the ICC process unfolded, giving rise
to other legal issues.
The charges preferred were for crimes against humanity of murder, forcible
transfer of population, persecution, rape and other inhumane acts (supra
Sect. 4.3.1.3.1). However, at the end of the pre-trial phase, the Pre-Trial Chamber
declined to confirm charges in respect of two of the six suspects. More importantly,
the Chamber declined to confirm charges relating to property crimes in the
Kenyatta and Muthaura case but confirmed similar charges in the Ruto and Sang
case. The Chamber’s decision and the Prosecutor’s indifference about the e xclusion
of property crimes in the Ruto and Sang case have been flawed, for it jeopardizes
the victims’ genuine expectations to get reparations (in case of a conviction) for the
property lost during the violence (supra Sect. 6.4.1). The ICC’s intervention was
motivated solely by Kenya’s failure (inaction) to carry out its duty to p rosecute.
Despite this fact, Kenya tried, albeit unsuccessfully, to keep the ICC away by
challenging admissibility of the cases (supra Sect. 6.5).
The most crucial legal question which emerged at the ICC during the pre-trial
phase of the Kenya situation was whether in terms of their legal threshold, crimes
against humanity could have been committed in Kenya during the post-election
violence (supra Sect. 6.4.2.3). This controversial question emerged particularly
in relation to the contextual elements of the definition of crimes against human-
ity under Article 7(2)(a) of the ICC Statute requiring such crimes to be commit-
ted pursuant to “State or organizational policy”. Like the judges of the Pre-Trial
Chamber, scholars remain divided to date as to whether, when interpreting the
7 Conclusion 269
word “organization” from the formulation “State or organizational policy”,

the main focus should be on the nature or on the capacity of the entity that was
involved in the commission of the crimes, i.e. whether the entity must be a “state-
like organization” or it could be any “organization” provided it has the capacity to
carry out a systematic or widespread attack on a civilian population.
The majority of the Pre-Trial Chamber held that in order to establish whether
an entity qualifies as an “organization” capable of adopting a policy for purposes
of Article 7(2)(a) of the Statute, the primary focus should not be on the nature or
structure of the entity, but rather on its capacity to carry out an attack on a civil-
ian population. The minority opinion, however, was that the nature of the entity,
including its permanency, should be the primary focus. Based on the capacity cri-
terion, the majority of the Pre-Trial Chamber concluded that two entities in Kenya,
namely Mungiki and The Network, qualified as “organizations”, and that they had
adopted separate policies pursuant to which there were reasonable basis to believe
that crimes against humanity had been committed during the post-election vio-
lence. The minority opinion, on the other hand, opined that from their nature as
mere “criminal gangs”, the two entities could not have qualified as “organizations”
capable of adopting such policies, and, therefore, no crimes against humanity
could have been committed in Kenya.
The position taken by the majority of the Pre-Trial Chamber has been endorsed
in this book, for it is in line with the underlying objective of the ICC Statute to
fight impunity for serious crimes of concern to the international community (supra
Sect. 6.4.2.3). It entails a more convincing and pragmatic approach to the inter-
pretation of the ICC Statute, and accommodates the fact that the ICC, unlike the
ad hoc Tribunals, is forward-looking. Furthermore, such position underscores
the importance of interpretation the ICC Statute with a prospective (as opposed
to retrospective) outlook, with a view to accommodating the dynamic techniques
employed by perpetrators in committing heinous crimes. One of such techniques
is to use loosely organized entities which, although may not be state-like, have the
capacity to carry out widespread and systematic attacks on civilian populations.
On the other hand, the position taken by the minority embodies a retrospective
outlook. Such outlook has been flawed for not fully appreciating the dynamism
with which crimes against humanity are committed, including by entities, such as
criminal gangs and terrorist groups, whose capacity to commit heinous crimes is
evident in their acts, but whose formal structure may not necessarily be very clear.
Other incidental issues arising in relation to the Kenya situation before the ICC
have also been legally analysed. These include Kenya’s efforts and attempts to have
the cases deferred by the UN Security Council, as well as its attempts or efforts to
have the cases transferred to African regional courts. Although in these two endeav-
ours Kenya was fully backed by the AU, its efforts were unsuccessful because they
lacked a firm legal foundation (supra Sects. 6.6.1 and 6.6.2). A similar issue which
has also been addressed is Kenya’s threats to withdraw from the ICC Statute claim-
ing that the ICC’s intervention per se constituted an interference with its sovereignty.
It has been shown that although withdrawal per se would not have stopped the cases,
270 7 Conclusion
it definitely would have aggravated the challenges already facing the ICC regarding
cooperation from Kenyan government (supra Sects. 6.6.3 and 6.7).
The election of Uhuru Kenyatta and William Ruto, both ICC indictees, as
Kenya’s President and Deputy President, respectively, became a huge challenge
to the ICC. This has contributed to the most recent tension between the ICC and
the AU. Both Kenya and the AU have argued that the cases facing the duo must
be suspended in view of, inter alia, the immunity from prosecution that heads of
state enjoy under customary international law. However, this argument does not
hold water in terms of the ICC Statute to which Kenya is a State Party (supra
Sect. 6.7.4). On the other hand, the ongoing ICC process in Kenya contributed sig-
nificantly in deterring crimes during the 2013 general elections, which were com-
paratively peaceful. However, whether such deterrence will be sustainable in the
future remains uncertain (supra Sect. 6.8).
Finally, out of the 8 situations currently before the ICC, the Court indicted an
average of only 5 persons per situation. In the case of Kenya, only 6 suspects were
originally charged. Out of these, only 4 were found triable, and only 2 were stand-
ing trial at the time of writing. This confirms the fact that the ICC is indeed not
necessarily a panacea to impunity for the core crimes under international law, but
only an important ingredient. Irrespective of the impact that the ICC may have in
a given intervention, the fight against impunity cannot be won without the support
of national courts. Therefore, despite the ICC’s intervention in Kenya, the Kenyan
domestic judicial organs still remain indispensable in ensuring that impunity is
addressed genuinely with regard to the other alleged perpetrators of the crimes
committed during the post-election violence. This is the form of justice that the
victims still deserve and seek 6 years after the violence. Kenya subscribes to the
adversarial tradition of litigation, as well as to absolute prosecutorial discretion. It
follows that if the suspected perpetrators against whom there is enough evidence
are not prosecuted, the blame will be shouldered by the Kenyan national prosecu-
torial authority in the first place. However, whatever the situation, the political will
of the Kenyan government as a prerequisite for addressing impunity for the crimes
is indispensable.
Index
A C
Admissibility challenge, 109, 113, 224–230, Canada, 117, 127
238, 268 Carson, Johnnie, 243
Adversarial system/tradition, 129, 164, 270 Central African Republic, 5
African customary law, 116 Centralism, 19
African Union (also AU), 5, 8, 10, 38, 56, Characterization of facts, 196–199
144, 184, 231–235, 248–253, 256, 266, Chile, 158
269–270 Command responsibility, 193
Aggression, 2, 214, 250 Common law crimes/offences, 117
Akiwumi Commission, 39–40 Complementarity (principle), 7, 10, 88,
Al-Bashir, Omar, 184, 233–234, 242, 245 216–230, 232, 236
Ali, Mohammed Hussein, 178 Confirmation of charges, 77, 179, 197–198,
Alston, Philip, 58 201, 240, 244, 245–256
Amnesty (in Kenya), 7, 143, 151, 154–159, Conspiracy, 95–99
162, 170, 267 Contextual elements, 69, 90, 101, 113, 152,
Anan, Kofi, 40, 56 153, 191, 201, 202, 214, 268
Armed conflict, 62–63, 90, 209–210, 214–215 Control Council Law, 214
Arrest warrant, 224, 233, 242, 245, 247, 254 CORD, 242
Article 18 (of the ICC Statute), 221–223 Core crimes, 2–5, 7, 59, 71, 86–92, 102, 106,
Assembly of ICC States Parties (also ASP), 116, 121, 123, 152–153, 158, 171, 214,
251, 253 217, 229, 232, 236, 245, 251, 256,
Attorney-General (also AG), 102, 106–108, 265–266, 270
113, 114, 129, 130, 155–156 Cote d’Ivoire (also Ivory Coast), 5, 191
Australia, 116, 117 Coup d'état (also coup), 24–25
Authorization of investigation, 188–189, 230 Crimes against humanity, 2, 6–10, 40, 59,
60–62, 68–71, 73–75, 80, 86–94,
101–102, 113–115, 118–129, 135, 146,
B 151–160, 165, 171, 191–196, 200–202,
Barasa, Walter, 247 204, 206–209, 211–216, 244, 256,
Bemba, Jean-Pierre (case), 209 266–269
Bensouda, Fatou, 242, 247 Crimes against peace, 127, 214
Bomas draft constitution, 33

International Criminal Justice Series 2, DOI 10.1007/978-94-6265-041-1
272 Index
D H
Darfur, 233, 240 Harambee, 22
Deferral Hard mirror theory, 91
of cases, 79, 231–234, 238, 248, 250–251 High-level perpetrators, 267
of investigations, 221–223, 231 Hybrid (also internationalized) courts, 70–71,
Deterrence, 132, 254, 255 208, 214
Dictatorship (also dictatorial regime/tyrannical
rule), 17, 23, 168, 144, 266
Director of Public Prosecutions (also DPP), I
106, 111–112, 130–134, 160, 225 ICC Elements of Crimes, 94, 121, 210
Divide and rule, 17–18 ICTR, 70, 214–216, 240
Dixon, Rodney, 113 ICTY, 70, 128, 208, 214–216
Domestic prosecutors, 100–101, 135, Imanyara, Gitobu, 73
153–154, 165, 267 Immunity, 122, 250–251, 270
Domestication of ICC Statute, 128, 192, 265 Impunity, 3–4, 17, 38–41, 63, 65–66, 71,
Dualism (also dualist practice/approach), 86, 76–78, 81, 89, 108, 111–113, 118, 122,
118, 123 128–129, 133–134, 142, 170, 185, 187,
Duty to prosecute, 3, 5, 9, 10, 90–91, 106, 215, 220, 229, 236–237, 244–245, 249,
160, 268 255–256, 265–266, 269–270
IMT (also Nuremberg) Charter, 127, 208, 211,
214–215
E Inability to prosecute, 3, 91, 217–219
East African Community, 235 Inaction, 3, 91, 218–224, 268
East African Court of Justice (also EACJ), Incitement, 36, 54–55, 96, 106–186, 187, 203
235–237 Incriminating information, 164–168
East Timor, 70, 167 Independent Electoral and Boundaries
Economic crimes, 146–147 Commission, 243
Egypt, 5 Indonesia, 147
Electoral Commission of Kenya (also Kenya Integrity case, 243–246
Electoral Commission), 48–49 Inter-American Court of Human Rights, 158
Enforced disappearances, 146, 154, 158, 193 International Crimes Division (also ICD),
Ethnic cleansing, 25, 36, 39, 54, 59–60 74, 114
European Union, 243 International Law Commission (also ILC),
Excusal (from attending trial), 249–252 212
F J
France, 251, 243 Jubilee Alliance, 241
Federalism (see also Majimbo/regionalism), Jurisdiction
19, 26 ratione materiae, 191, 126, 202
ratione temporis, 68, 126, 190
universal, 3–5, 117–118, 121
G Jus cogens crimes/status, 118, 120, 125, 127,
Gabon, 232 135, 265
Gathungu, Joseph, 79 Justice balance, 142
GEMA, 79
Genocidal intent (also dolus specialis), 60, 154
Genocide, 2, 25, 36, 40, 59–60, 63, 68, 69, 70, K
71, 88, 90, 92, 120, 127–128, 146, 151, KADU, 18–25
154, 158–159, 192, 214, 230, 265 KAMATUSA, 78
Good governance, 246 KANU, 16, 18–31, 33–37, 39
Gross human rights violations, 5, 39–41, 146, KASS FM, 54–55, 178, 203
152, 158, 255 Katanga and Chui case, 230
Index 273
Kaul, Hans-Peter, 202, 204, 206–215 Mungiki, 35, 51–53, 100, 195, 202–207,
Kenya National Commission on Human 248, 269
Rights (KNCHR), 58–61, 63, 75, 100, Munyaneza, Desire, 128
105, 111, 160, 193, 200, 223 Murungi, Betty, 149
Kenya National Dialogue and Reconciliation Musila, Godfrey, 76, 134
(also KNDR), 56–57 Musyoka, Kalonzo, 48, 230
Kenyan Parliament, 7–8, 125, 135, 181, 239 Muthaura, Francis Kirimi, 105, 178–179, 247
Kenyan Truth, Justice and Reconciliation Mutunga, Willy, 114
Commission
composition, 145–146
credibility, 148–150 N
mandates, 46–147 Nationality principle, 121
objectives, 145 Ndung’u Commission, 37, 40
origins, 144 Ne bis in idem (also double jeopardy), 93
report, 147–148 Negative ethnicity, 17, 41, 51, 78, 255–266
Kenyatta, Jomo, 19–26, 37, 41 New KANU Alliance, 28–30
Kenyatta, Uhuru Muigai, 29–31, 35, 73, 79, New Zealand, 127, 128
105, 178–179, 203, 241–256, 270 Nice, Geoffrey, 113
Kiliku committee, 39 Nigeria, 5, 232
Kiplagat, Bethuel, 148–150 Njenga, Maina, 248
Kivuitu, Samuel, 49 Nolle prosequi, 76, 110, 133–134
Kosgey, Henry Kiprono, 105, 178, 203 Nullum crimen sine lege, (also principle of
legality), 9, 86–87, 92, 120, 124,
125–128, 135
L Nuremberg Trial, 127
Lake Victoria fm, 54–55 Nyayo politics, 23
Lancaster Conference, 18, 20
Law Society of Kenya, 40
Libya, 5 O
Lists of suspects, 103–106 Obiter dictum, 119
Low-level perpetrators, 105, 267 Obligatio erga omnes, 115, 119
Lubanga case, 198–199 Ocampo Four, 78
Ocampo Six, 75–78, 105, 228–229
Odinga, Jaramogi Oginga, 21, 23–24
M Odinga, Raila, 25, 28–30, 33–34, 48, 50–51,
Majimbo (also regionalism/federalism), 54, 56–57, 65, 72, 75, 103, 242–243
19–22, 26 Orange Democratic Movement (also ODM), 31,
Mali, 5 34–35, 49–51, 54, 56–57, 72, 100, 178,
Material elements, 152, 201, 214 185, 196, 202–203, 206, 223–224, 234
Mathenge, Esther Murungi, 40 Office of the Prosecutor (also OTP), 181–183,
Mau Mau, 18–20, 35 190, 200, 219, 222, 229
Mediation, 56–57 Open-ended investigation, 186, 188
Modes of participation (also modes of crimi- Operation Okoa Maisha, 193–194
nal liability), 97–102 Ordinary-crime approach, 89–102, 114–115,
Moi, Daniel Arap, 16, 22–30, 36–37, 135, 267
39–41, 266 Ouko, Robert, 148
Monism (also monist practice), 123
Monopartysm, 21
Mount Elgon, 58, 62–63, 187, 192–194, 256 P
Muigai, Githu, 113 Panel of Eminent African Personalities,
Multipartysm (also multiparty system), 21, 25, 65, 76, 103
26–27, 36 Peace and security, 231–234, 250
Multiparty elections, 36, 41 Peru, 158
274 Index
Piracy, 117–119, 225 S

PNU, 34–35, 49, 51, 53, 56, 100, 185, Sabot militia, 193–194
195–196, 203, 223–224, 234 Same-conduct test, 229–230
Police Prosecutors (also lay prosecutors), Same-person test, 228–229
112–113 Sang, Joshua Arap, 105, 178, 203
Policy element, 154, 204, 207–208, 212 Self-incriminating, 165–168, 171, 268
Political alliances, 15, 17, 26–34, 41, 241, 254 Self-referral, 181–185, 189, 220, 268
Political objective, 157 Soft mirror theory, 92
Political will, 7, 74, 86, 128, 134, 218, Song, Sang-Hyun, 243
267, 270 South Africa, 232
Positive complementarity, 228–229 South African TRC, 156–157
Post-election violence in Kenya South Sudan, 5
Pre-2007 trends, 36–38 Special Court for Sierra Leone, 70,
The 2007–2008 violence 166–168, 214
agreement on criminal accountability, Special Rapporteur, 58
63–66 Special Tribunal for Kenya, 64, 66–74, 86,
extent, nature and organization, 50–54 102, 120, 135, 152–154
inquiries into, 57–63 Stare decisis, 119
triggers, 49–50 State referral, 181, 183
Prerogative powers of mercy, 122, 155 State-like organization, 206–213
Presumption of innocence, 244–246 Sudan, 5, 184, 233, 240, 248
Primacy (of jurisdiction), 67, 217, 220–221, 228 Summons to appear, 161, 224
Priority cases, 103, 109, 111
Private prosecution, 131–133
Privileged information, 162 T
Property crimes, 96, 195–199, 268 Tanzania, 22, 235
Proprio motu investigation, 179–184, 186, Tarfusser, Cuno, 202
188–191, 221, 239, 254, 256 Teleological approach, 211
Prosecutorial discretion, 76, 131–133, 183, Territoriality principle, 121
194–195, 197, 199, 256, 270 Terrorism, 5, 250–251
Prosecutorial policy, 183, 229 The Hague Option, 72–73, 78, 181, 237
Prospective nature/outlook of the ICC Statute, The National Alliance, 30, 241
215–216, 269 The Network, 202–205, 207, 269
Third states, 3–4, 224, 236
Tobiko, Keraiko, 112
R Tokyo Charter, 127
Rainbow Coalition, 30–34, 144 Torture, 28, 92, 99, 146, 153, 158, 193
Rao, Sharad, 169 Trendafilova, Ekaterina, 202, 209
Ratio decidendi, 119 Trial via video link, 252
Referendum, 33–34, 187 Trigger mechanisms, 179–180
Proprio motu referral, 180, 190
Restorative justice, 113, 142–143, 266
Retributive justice, 142 U
Retroactivity, 124–127, 154 Uganda, 184, 236
Retrospective re-labelling (of criminal UN Charter, 231–233, 245
conduct), 126 UN Fact-finding mission, 39, 58
Romano-Germanic legal tradition, 129 UN Security Council (also Security Council),
Ruto, Isaac, 73, 237 6, 70, 180, 215, 223, 231–234, 239,
Ruto, William Samoei, 54, 73, 78, 105, 248, 250–251, 269
178–179, 185, 203, 241–256, 270 United Kingdom (also UK), 116–117,
Rwanda, 36, 128, 214, 240 169, 251
Rwandan Genocide, 54, 214 United Republican Party, 241
Index 275
Unwillingness (to prosecute), 91, 217, Waki Report, 58–59, 63, 181
218–219 Waki, Philip, 57, 72
USA, 117, 185, 251, 255 Wako draft constitution, 33
Usacka, Anita, 227–228 Wako, Amos, 33, 60
War crimes, 2, 59, 62–63, 70–71, 87–88, 90,
120, 127–128, 158, 191–192, 194, 199,
V 214, 265
Van den Wyngaert, Christine, 247 Westgate (attack), 250–251
Vernacular radio stations, 54–55, 105 Withdrawal (from the ICC Statute), 237–240
Vetting, 143, 145, 168–170 Witness protection, 183, 239, 242, 254
Written law, 115, 117, 119, 127
W
Wagalla massacre, 148
Waki Commission, 40, 52, 57–59, 61, 63–66,
70, 74, 78, 81, 103, 120, 181–182, 223

Sosteness Francis Materu (Auth.) - The Post-Election Violence in Kenya - Domestic and International Legal Responses

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International Criminal Justice Series Volume 2

Sosteness Francis Materu

More information about this series at http://www.springer.com/series/13470

The Post-Election Violence

ISBN 978-94-6265-040-4 ISBN 978-94-6265-041-1 (eBook)

Library of Congress Control Number: 2014954347

Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl

© t.m.c. asser press and the author 2015

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

Berlin, Summer 2014 Prof. Dr. h.c. mult. René Blattmann

Part I Historical Roots of Ethnic Violence in Kenya

2 Background to the Post-Election Violence . . . . . . . . . . . . . . . . . . . . . . . 15

Part II Post-Election Violence, Domestic Legal Options and Responses

3 The Post-Election Violence and Immediate Aftermath. . . . . . . . . . . . . 47

4 Criminal Accountability at Domestic Level . . . . . . . . . . . . . . . . . . . . . . 85

5 Alternatives and Adjuncts to Domestic Prosecutions . . . . . . . . . . . . . . 141

Part III International Responses

6 The Kenya Situation Before the ICC. . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

6.7 The Future of the Kenyan Cases at the ICC. . . . . . . . . . . . . . . . . . . . 240

MP(s) Member(s) of Parliament

1 See Kenya National Bureau of Statistics 2010, p. 20.

© t.m.c. asser press and the author 2015 1

economic development, Kenya is a developing country with the largest Growth

1.2 Setting the Context

4 Library of Congress 2007, p. 2.

pp. 21–24; Schabas 2007, pp. 82–83; Werle 2009, p. 29.

10 ICC Statute, Preamble para 4 and Article 1.

“peremptory norm of general international law … from which no derogation is permitted”.

the ICC (June, 16 2003), p. 2 http://www.iccnow.org/documents/MorenoOcampo16June03.pdf.

23 Valinas 2010, p. 269. Cf. Laplante 2010, p. 636.

Page_Briefing.pdf. Accessed September 2014.

27 See Kenya National Dialogue and Reconciliation 2008a.

to suspend the proceedings before the Court.35 Second, it threatened to withdraw

35 See infra Sects. 6.6.1 and 6.7.4.

et seq.; Werle and Burghardt 2012, pp. 1 et seq.

retrospective punishment. In addition, the chapter examines to what extent Kenya

Abstract Literature indicates that the violence accompanying the 2007 general

© t.m.c. asser press and the author 2015 15

2.5 Criminal Gangs, Election Violence and Impunity............................................................... 34

1 See Troup and Hornsby 1998, p. 2.

violence. Such a picture is considered crucial here, because it will prepare a

2.2 Historical Role of Negative Ethnicity in Kenyan

2.2.1 Transition from Colonialism to Independence

2.2.2 The Regionalism and Centralism Ideologies

pp. 547 et seq.

15 Manners 1962, p. 9; Sanger and Nottingham 1963, p. 12.

Dominion State pending official declaration of independence. In this transitional

2.3 The Rise of Monopartysm and Consolidation

2.3.1 From De Jure Multipartysm to De Facto Monopartysm

As pointed out earlier, Kenya was a de jure multi-party state at independence,

22 Constitution of Kenya of 1963, Article 72.

The tribal-regional balance achieved in the Kenyatta’s first cabinet, together

2.3.2 Emergence of Factions Within KANU (1964–1966)

28 Anderson 2005, p. 547.

2.3.3 Suppression of Opposition Parties (1966–1982)

2.3.4 From Kenyatta to Moi: Tyrannical Rule Consolidates

35 Odhiambo-Mbai 2003, p. 62.

compared to Kenyatta’s.40 For example, notwithstanding the ban against opposi-

1.2 Setting the Context

2.5 Criminal Gangs, Election Violence and Impunity............................................................... 34

2.2 Historical Role of Negative Ethnicity in Kenyan

2.2.1 Transition from Colonialism to Independence

2.2.2 The Regionalism and Centralism Ideologies

2.3 The Rise of Monopartysm and Consolidation

2.3.1 From De Jure Multipartysm to De Facto Monopartysm

2.3.2 Emergence of Factions Within KANU (1964–1966)

2.3.3 Suppression of Opposition Parties (1966–1982)

2.3.4 From Kenyatta to Moi: Tyrannical Rule Consolidates

2.4 Resumption of Political Pluralism and Proliferation

2.4.2 Politics of Alliances and Party Hopping

2.4.2.1 The Rise and Fall of the “New KANU” Alliance

2.4.2.1.1 Courting Alliance with Odinga’s NDP

2.4.2.1.2 Effect of Moi’s Succession Plan: Project Uhuru

2.4.2.2 Advent of the Rainbow Coalition as a Winning

2.4.2.3 Towards the 2007 Elections: Disintegration of the Rainbow

2.4.2.3.1 Rainbow Coalition: A Fragile Alliance

2.4.2.3.2 Effect of the 2005 Constitution Making Process

2.5 Criminal Gangs, Election Violence and Impunity

2.5.1 Use of Criminal Gangs for Political Purposes

2.5.2 Trends of Election Violence

2.5.3 Commissions of Enquiry and Culture of Impunity

3.5.1 Salient Features of the Tribunal.................................................................................. 67

3.2.2 Extent, Organization and Nature

3.4 Inquiries into the Violence and Road Map for Criminal

3.4.1 Commission of Enquiry into the Post-Election Violence

3.4.3 Findings of the Inquiries: Were Crimes Under

3.4.3.2 Crimes Against Humanity

3.4.4 Agreement and Recommendations Pertaining

3.5 The Proposed Special Tribunal for Kenya:

3.5.1 Salient Features of the Tribunal