40 - Complementarity and the impact of the Rome Statute and the International Criminal Court in Kenya

Summary

Kenya plunged into a dark episode of violence following the controversial presidential election of 2007. This chapter analyses the impact of the International Criminal Court's (‘ICC’) investigation into issues of complementarity and aspects of peace, justice, victims and affected communities in the country. It studies the government's failure to set up a Special Tribunal for Kenya or to initiate any effective national proceedings for international post-election crimes at the domestic level.

While the Truth, Justice and Reconciliation Commission (‘TJRC’) established to investigate past human rights violations could provide a platform to unearth the truth and identify potential cases for prosecutions, it is unlikely to have the capacity to ensure comprehensive, genuine investigations of alleged perpetrators of post-election violence. Victims and communities affected by the violence have continuously expressed their strong support for the ICC investigations. They say they hope that the ICC's potential to prosecute could avert violence during the next elections in 2012. However, threats to potential witnesses remain a critical concern and necessitate the prompt establishment of an effective protection mechanism for witnesses and victims. Moreover, and in tandem with the principle of complementarity, timely action by the ICC as well as commitment by the Kenyan government not only to cooperate with the court but also to establish mechanisms to address all perpetrators locally is imperative to curb entrenched impunity and redress the harm victims have suffered.