The Kenyan Section of the International Commission of Jurists welcomes the decision of the International Criminal Court’s Pre Trial Chamber to authorise an investigation into the situation in Kenya with regard to crimes against humanity committed during the December 2007 - January 2008 post election violence.The decision represents a new dawn in the search for accountability for the post election violence and the fight against impunity.
However ICJ Kenya cautions that this is just the beginning. It is at this juncture that the real challenges to realising justice for victims of international crimes arise. We urge the country to be alive to these challenges.
We urge all actors in the process to support the Court in its quest for justice and accountability by actively co-operating with the ICC in the course of investigations and eventual prosecution.The state is obliged under domestic law through the International Crimes Act to provide assistance to the Court in all aspects of its investigations.
The Pre Trial Chamber decision reaffirms that the ICC operates on the principle of complementarity which means that states, including Kenya, have the primary responsibility to investigate and prosecute crimes under the Rome Statute. This means that the Kenyan government still has a crucial role to play and should not view the decision as an excuse to dispense with its responsibility under the Statute.
Further, the decision brings to the fore the issue of Witness Protection which has not been sufficiently addressed through existing legislation and available mechnisms. Yesterday’s decision calls for more urgency on the part of government to put in place urgent measures to protect victims and witnesses.
In addition, the ICC prosecutor envisaged a three pronged strategy to deal with impunity in Kenya:
1. ICC Prosecution for those bearing the greatest responsibility;
2. A Special Tribunal for Kenya to deal with mid to lower level perpetrators of the post election violence and;
3. A credible truth, justice and reconciliation process to address historical injustices which contributed to the underlying triggers of violence.
ICJ Kenya calls for full cooperation and active engagement with all these components of accountability. In the words of our national anthem : ‘Justice be our shield and defender’!
