Chief Justice Willy Mutunga has recently revealed that Kenya is at the advanced stages of setting up an International Crimes Division of the High Court.
According to the CJ, the new division may eventually be utilised in the fight against crimes against humanity, drug trafficking, trafficking in humans and body parts, money laundering, counterfeit goods, corruption, piracy and terrorism.
This is a promising step: international crimes, while adhering to many of the doctrines and principles that will be familiar to domestic criminal courts, have certain aspects that often require international law expertise that generalist judges will lack. These aspects include extradition, diplomatic immunity, head of state immunity and sovereign immunity, treaty interpretation, knowledge and application of customary law, application of different modes of liability (co-perpetration, joint criminal enterprise) and experience with regimes of mutual legal assistance. Assuming that the new division will be made up of international criminal lawyers with domestic law experience, then this should help ensure that poor decisions such as the Al-Bashir Arrest warrant case (I applaud the result, not the reasoning of the judge) and the Re Hashi piracy case become things of the past.
The creation of such a division has an advantage over international tribunals because it is locally based, victims will find it easier to participate in proceedings, witnesses will be close by and costs of transport and logistics will probably be lower (as compared to international travel to the Hague or Arusha). The other side of the coin is that it is easier to bribe or threaten those involved with international cases. And the threat of interference in international cases is necessarily higher given the weight of the crimes and their penalties. Witness protection and security against both physical and cyber attacks is therefore paramount.
The creation of the new division should be accompanied with another note of caution. Uganda tried something similar through the creation of a division to try international crimes crimes, particularly those committed during the war with the Lord’s Resistance Army.
It’s hardly been a ringing success. Controversy over the application of amnesty laws as well as delays have dogged the division since inception. In addition, there are rumours that the government is using the division as part of a carrot and stick approach to getting the LRA to sign a permanent peace deal. Given the Ugandan government’s hot and cold approach to the ICC proceedings against members of the LRA, these rumours do not seem far fetched.
Our new constitution may have removed the immunity of the President and Deputy President with respect to international crimes, but it does not prohibit amnesty laws.
So I look forward to the new division, but I hope it is well integrated with the Witness Protection Unit and the organs of state (in the AG’s chambers, DPP’s office etc.) that concurrently deal with international crimes. I also hope that the legal regime under which it operates is also strengthened so that it can effectively prosecute international crimes.