Complementarity in action: the role of civil society and the ICC in rule of law strengthening in Kenya.

• Date: 01 January 2011
• Author: Bjork, Christine,Goebertus, Juanita,Bjork, Christine^Goebertus, Juanita
• Published date: 01 January 2011
• Author: Bjork, Christine

This Note examines the nexus between international and domestic criminal justice systems. It discusses whether the International Criminal Court (ICC) can advance positive complementarity through its so-called preliminary examinations. Using Kenya as a case study, we analyze the advocacy strategies of Kenyan NGOs during the preliminary examination that took place between February 2008 and March 2010. We found that Kenyan NGOs did not use the ICC preliminary examination to "trigger" criminal justice reform or domestic accountability for crimes perpetrated during the post-election violence. Instead, these NGOs successfully focused on advocating for the ICC preliminary examination to turn into a formal investigation. Kenya's experience with the ICC preliminary examination leads us to conclude that positive complementarity poses a paradox for NGOs: if they insist on capacity-building of the domestic justice system, they fail at demonstrating that the State is "unwilling or unable" to prosecute crimes domestically. This Note explores that paradox.

INTRODUCTION

Since Kenya reinstated multi-party politics in 1991, the country has experienced violence before and during elections. (1) By the end of 2007, yet another election crisis had materialized in Kenya. Disputed presidential election results triggered protests and violence reinforced by ethnic tensions. This time, however, the violence was more widespread; it was urban as well as rural, affecting a majority of the Kenyan provinces, and was more deadly and destructive than ever before. Ultimately, 1,133 people were killed, many more injured, and thousands of private and public properties were burned, pillaged, or destroyed, causing massive internal displacement. (2)

The 2007-2008 post-election violence did not emerge out of a vacuum. While the pre-election violence was mainly a clash between supporters of different candidates in response to the perceived rigging of elections, the post-election violence had a distinct ethnic dimension. (3) In previous elections, Kenyan politicians have used ethnic division to fuel political support for their own ethnic groups. (4) There is a widespread and common belief that Kenyan presidents favor their own ethnic groups. (5) The growth of presidential power and the lack of checks and balances on the government have led to the conviction that one's own group must be in power in order to have access to resources, especially land. (6) The pattern of unprosecuted election violence has contributed to a culture of impunity, which, together with poverty and unemployment, has led youths to be willing to take up arms as "mercenaries" on behalf of anyone who will pay them. (7) All of these tensions came to the surface during the 2007 election. One Luo woman described her experience during the post-election violence in Mombasa by stating that "it was as if we ceased to be human for a moment." (8)

In February 2008, President Mwai Kibaki and the opposition leader Raila Odinga signed a power-sharing agreement, which ended the violence and stopped Kenya from plunging into civil war. However, Kenya's coalition government has been averse to holding perpetrators of the post- election violence accountable now that both sides are sharing power. The Waki Commission, an independent task force set up to investigate the post-election violence, concluded that while the pre-election violence was a spontaneous combustion between supporters of different election candidates, the post-election violence was to a large extent organized and planned by politicians and businessmen. (9) The Waki Commission also found that the perpetrators were not just ordinary citizens but also members of the State Security Agencies. (10)

The serious deficiencies of the Kenyan criminal justice system are an undeniable reality, openly recognized even by governmental authorities. (11) Some of the main problems include: (i) insufficient investigative capabilities and resources on the part of the police; (ii) corruption within the police force; (iii) lack of oversight by the Office of the Attorney General (OAG) and the Director of Public Prosecutions (DPP) over the Crime Investigations Department (C1D) of the police; (iv) political interference with and manipulation of the work of the police, the OAG, and the judicial chambers; and (v) lack of a disciplinary system for the police and the judiciary. (12)

So far, the Attorney General has initiated very few investigations and prosecutions of crimes perpetrated during the post-election violence. (13) There have been no prosecutions of those suspected of orchestrating the violence--that is, those who would bear the most responsibility. The difficulties in dealing with the main perpetrators through the ordinary justice system are evident: if the system is so deficient that it cannot convict even the low-level perpetrators, how will it take on high-level politicians with significant influence over the justice system? While there have been attempts to establish a transitional justice mechanism in the form of a Special Tribunal to deal specifically with the post-election violence, the Parliament has struck down or stalled several bills proposing to install such a Tribunal. (14)

The ICC Chief Prosecutor Luis Moreno-Ocampo started monitoring the situation in Kenya in February 2008. Under Article 15 of the Rome Statute, the Prosecutor can initiate so-called "preliminary examinations" wherein he proactively monitors and analyzes information on alleged crimes under the Statute. Thus far, the Prosecutor has made a number of preliminary examinations public, including, among others, Afghanistan, Colombia, C6te d'Ivoire, Gaza, Georgia, Guinea, and Kenya. The purpose of the preliminary examination is to determine whether the Prosecutor should ask for authorization from the Pre-trial Chamber to open an investigation in accordance with statutory requirements. (15)

One of the purposes of making the preliminary examinations public--which is a relatively recent policy development initiated by Prosecutor Moreno-Ocampo (16)--is to notify States of potential ICC investigation and encourage them to take action themselves. (17) The anticipated reaction from a State under ICC scrutiny is that it will "aggressively and fairly pursue domestic prosecutions of international crimes so as not to trigger the jurisdiction of the ICC over the case and invite the glare of the eyes of the international community upon it." (18) Ideally, ICC preliminary examinations should therefore "trigger" domestic prosecution of international crimes, for instance through installment of transitional justice mechanisms or domestic criminal justice reforms, either complementing the Court's limited prosecutions of the top level perpetrators or negating the need for formal investigation and prosecution at the ICC altogether. This is often referred to as "positive complementarity" and it is one of the core principles in the current Prosecutor's strategy. (19) While the notion of positive complementarity was hardly contemplated during the drafting of the Rome Statute, the concept has evolved rapidly in recent years, and the idea that the ICC can have a positive impact on the functioning of domestic justice systems has come to be both widespread and influential. (20)

In Kenya, however, the ICC preliminary examination did not appear to encourage Kenyan authorities to take action. Since there were no serious attempts to investigate or prosecute perpetrators of the post-election violence by the deadline agreed upon by the Prosecutor and Kenyan authorities, the Prosecutor found reasonable basis to proceed with an ICC investigation. (21) This is the first time the Prosecutor has invoked the power to open a proprio motu investigation conferred to him under Article 15 of the Rome Statute. (22) On March 31, 2010, Pre-trial Chamber II authorized the Prosecutor to commence a formal investigation covering alleged crimes against humanity committed during the post-election violence, and on December 15, 2010, the Prosecutor presented cases against six individuals. Requests for the issuance of summonses to appear were made for William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohamed Hussein Ali. (23) All held prominent positions in the Kenyan public and private spheres at the time of the post-election violence. Three were serving as Ministers in the Kenyan Cabinet, and the others included the Commissioner of the Kenyan Police, the Chairman of the National Security Advisory Committee and a radio broadcaster. (24) The Prosecutor believes that these six people were the main orchestrators of the post-election violence. (25)

1. ANALYTICAL FRAMEWORK

   This unique and complex situation--involving massive violence, a dysfunctional criminal justice system, the ICC, and a vibrant civil society--moved us to visit Kenya in March 2010. Our objective was to identify whether national NGOs were taking advantage of the ICC attention to push for national criminal justice system reform in Kenya and, consequently, whether the ICC preliminary examination was triggering domestic accountability for the post-election violence in Kenya.

   In essence, this research was inspired by two main questions: what can and should the ICC do to promote or facilitate an increased functioning of domestic justice systems? What role can domestic civil society play in such a process? In order to answer these questions we undertook qualitative research in Kenya, a country that at the time was under preliminary examination by the ICC. The process, content, and scope of that research will be described infra. However, before exploring the findings from our research in Kenya, we will first situate the discussion within the normative and theoretical framework that guides our analysis.

   1. The Principle of Complementarity

      The ICC is equipped with complementary jurisdiction, a legal concept...