Mapping

On 28 February 2008, then-president Mwai Kibaki and opposition leader Raila Odinga signed a power-sharing agreement to attempt to bring an end to the post-election violence.Footnote ¹³ The agreement, which was christened the ‘Kenya National Dialogue and Reconciliation Process’, contained terms for a ‘Grand Coalition’ government incorporating Kibaki’s PNU and Odinga’s ODM. It also contained an agreement to immediately stop the violence and laid out a road map for humanitarian response, as well as institutional and legislative reforms aimed at preventing future atrocities.Footnote ¹⁴ This was to be accomplished through institutional and legislative reform, as well as the establishment of several commissions of inquiry to investigate and address issues of justice, accountability, governance and the rule of law.Footnote ¹⁵

It was apparent, however, that there was a lack of goodwill in judicial state organs in pursuing accountability for the electoral violence. In the aftermath, the office of the attorney general investigated and prosecuted a few cases before the law courts.Footnote ¹⁶ However, these cases were not only of low-level perpetrators of the violence but were also limited to minor offences. The investigations and prosecutions eventually stalled altogether, supposedly for lack of evidence and/or in anticipation of the ICC or the establishment of a special tribunal.Footnote ¹⁷

Prior to any national or international bodies being mandated to investigate the post-election violence, and before the degradation and adulteration of evidence and information, human rights organisations were on the ground collecting and collating data in the most affected regions. This ‘mapping’ exercise was intended to assist in preparing prosecutorial initiatives. It provided a sense of the nature of the crimes perpetrated, the geographical location of the crimes, who the victims were and the suspected identity of the perpetrators. The Kenya National Human Rights Commission (KNHCR) conducted one of the key mapping exercises, deploying teams of trained investigators to collect information from eight regions of Kenya that had been worst hit by the violence.Footnote ¹⁸ These teams sought to identify the specific human rights violations perpetrated and the responsibility of the state in response. The team also sought to analyse the criminal responsibility of the alleged perpetrators within the framework of Kenyan domestic law, as well as the state’s international law obligations. This would later formulate the recommendations made to the national and international authorities for further action.

The information gathered only met a prima facie standard; however, the process gave a sense of the scale and pattern of the violations, and also identified potential leads and sources of evidence. It demonstrated the magnitude of the violence through introducing terminologies such as ‘crimes against humanity’. Upon the establishment of the Commission of Inquiry into the Post-Election Violence (CIPEV), popularly referred to as the ‘Waki Commision’ after its chairperson, human rights organisations presented their findings before the commission. Part of these presentations included legal opinions and international best practices drawn from analogous situations and international human rights networks in order to accord the Waki Commission all options available towards ensuring accountability.Footnote ¹⁹ The analysis of the raw data collected had indicated that the violations amounted to international crimes, and specifically, crimes against humanity.Footnote ²⁰ Presenting the results of the mapping therefore included a presentation of possible options for accountability within Kenya’s legal framework, including international obligations drawn from international treaties like the ICC Rome Statute.

CSOs were concerned about the limited time available to the Waki Commission, whose mandate was only for three months, between May and August of 2008.Footnote ²¹ They were further concerned about the non-enforcement of the outcome of previous commissions that had also investigated incidents of electoral violence.Footnote ²² These presentations and recommendations to the Waki Commission included a recommendation for an ICC intervention, as Kenya had ratified the Rome Statute and bore an international obligation to domestically prosecute the international crimes committed on its territory.

These presentations bore fruit, as a key recommendation of the Waki Report was the establishment of a domestic special tribunal to try those responsible for the worst abuses. Failing that, the commission would submit its findings to the ICC prosecutor through the chief mediator of Kenya’s peace process, former UN secretary-general Kofi Annan.Footnote ²³ The commission forwarded Annan a sealed envelope containing the names of the top alleged perpetrators of post-election violence, largely believed to be high-level politicians, along with numerous boxes of evidence.Footnote ²⁴ If the government did not follow the commission’s recommendation to set up a hybrid ‘Special Tribunal for Kenya’ by 30 January 2009, Annan was requested to forward the envelope and the evidence to the ICC, which he eventually did.Footnote ²⁵

Options for accountability

By the time of the ICC’s involvement, a culture of impunity had become entrenched in Kenyan society. There was very little faith in the justice sector and many presumed the 2007–2008 violence could be swept under the carpet once the political power-sharing agreement had been signed. Part of the trigger to the violence was the refusal by the opposition leadership to seek resolution of electoral disputes in court, which resulted in its supporters seeking justice in the streets.Footnote ²⁶ The executive controlled the judiciary, determining appointments to and dismissal from this institution.Footnote ²⁷ The CIPEV findings also adversely implicated the police as having been part of the violence, even as they were mandated to carry out investigations for violations.Footnote ²⁸ The case of Edward Kirui is illustrative.Footnote ²⁹ In this case, a police officer was recorded on a national television camera shooting down two unarmed civilians in the course of the post-election violence.Footnote ³⁰ The case was dismissed, however, due to what has since been referred to as a ‘mix up’ in evidence.Footnote ³¹

The threat of an ICC intervention raised in the Waki Report resulted in the government publishing a bill to initiate a constitutional amendment that sought to entrench a special tribunal within the Kenyan Constitution.Footnote ³² Parliamentarians quickly (if narrowly) thwarted this effort, defeating the bill on the floor of the National Assembly.Footnote ³³ Subsequent attempts to develop a legislative framework for a special tribunal were defeated at the deliberation stage within the national cabinet.Footnote ³⁴ Ministers rejected the proposed laws because the president would not be immune to the prosecutorial process, he would not have the prerogative to pardon accused persons, and the attorney general could not terminate proceedings within the proposed special tribunal. The Ministry of Justice, National Cohesion and Constitutional Affairs lobbied members of parliament to establish the tribunal, this time proposing it as a division within the High Court.Footnote ³⁵ This initiative also failed, as did a final attempt at establishing a special tribunal through a private member’s motion. When one parliamentarian, MP Gitobu Imanyara, tabled a bill to establish a special tribunal for Kenya through a constitutional amendment, members of parliament walked out, ensuring an artificial lack of quorum. This happened on two occasions, after which the bill was never reintroduced in parliament.Footnote ³⁶

On the surface, it was presumed that the Waki Report would be shelved and the country would move on, as had been the case with previous reports. However, this time proved different: following the state’s unwillingness to establish its own accountability mechanism, the ICC intervened. Even though Kofi Annan had granted two more extensions before submitting CIPEV’s list of suspects and evidence to the ICC, the government did not, as noted, reintroduce legislation. The Office of the Prosecutor (OTP) also engaged in discussions with the government, in an attempt to convince the officials to initiate domestic proceedings with a carrot-and-stick approach.Footnote ³⁷ In the end, this proved unsuccessful: Annan handed over the Waki envelope and evidence to the OTP in July 2009. Later that month, after the cabinet still failed to agree on a new legislation, the government announced it would dispense with plans for a hybrid tribunal and instead seek justice through the ordinary court system.

In large measure, then, civil society introduced the international criminal justice option into public discourse concerning accountability for the post-election violence. Indeed, human rights organisations responded to the violence by convening stakeholder forums in which options for justice were interrogated, including international options. A jurist colloquium brought together Kenyan jurists and international legal experts to generate possible road maps to justice.Footnote ³⁸ Furthermore, an emphasis on the large numbers of victims of sexual and gender-based violence drew female advocates to apply to be counsel before the ICC.Footnote ³⁹

Witness protection

Before 2010, the witness protection programme in Kenya was a minor department within the office of the attorney general.Footnote ⁴⁰ Potential witnesses to the violations in 2007–2008 therefore could not be safely protected under this regime. Several state officials and high-ranking political figures had been adversely mentioned both under the Waki Commission report as well as in the KNHRC report on the post-election violence.Footnote ⁴¹ The latter also contained a list of suspected perpetrators and called on the state to follow through with the investigation and prosecution of perpetrators in line with its domestic and international obligations.Footnote ⁴² Given the weaknesses of the Witness Protection Unit (WPU) as constituted, however, it was highly doubtful that it could offer any protection to persons under threat due to information they may have held against high-ranking officials.

Civil society groups adopted a dual approach to this challenge. First, the better-equipped organisations provided temporary protection to victims and potential witnesses pending comprehensive investigation and verification. Although such an action proved dangerous to members of staff of these institutions – in effect, they served as an informal network of protection providers – and some of the victims and witnesses proved unreliable, this action was a temporary measure aimed at providing safety for genuine victims and witnesses, some of whom were severely injured and required medical attention. As with the mapping exercise, the legal threshold used was one of prima facie, with the understanding that subsequent investigation by the ICC would establish the veracity of the evidence if it chose to proceed with those witnesses and secure them through their own witness support systems. Second, civil society engaged with the state by offering both technical and material support towards legislative reform to accord structural and financial independence to the national WPU.Footnote ⁴³ Through the establishment of a technical team drawing on expertise from the United Nations Office on Drugs and Crime, these organisations sought to implement international best practices and equip state officials who could potentially oversee such an agency.

The culmination of this effort was the Witness Protection Amendment Act 2010, which created a largely independent agency to oversee the protection of witnesses to the post-election violence, in addition to other grave crimes. The shortcomings of the legislation are still the subject of much advocacy among Kenyan civil society. The key drawback is the establishment of a board comprising key government officials to oversee the running of the agency.Footnote ⁴⁴ Such a structure risks compromising the security of the witnesses protected under this regime and has led to suspicions concerning the agency’s viability.

Intermediaries

Human rights organisations played a key role as intermediaries in the pre-trial stage of the Kenyan cases before the ICC.Footnote ⁴⁵ Although the ICC only issued guidelines on intermediaries in 2014,Footnote ⁴⁶ the Rome Statute makes no reference to third parties and their interaction with the ICC. Likewise, the Rules of Procedure and Evidence provide for non-governmental organisations to facilitate the registration of victims for participation in Court process, as well as providing protection to third parties at risk as a result of Court activities.

The work of civil society intermediaries has also guided the OTP, which relied heavily on the reports of human rights organisations in its application to the ICC to open investigations into Kenya.Footnote ⁴⁷ Once the OTP was authorised to investigate, human rights organisations continued to work as intermediaries, often providing social and political context for the investigations. To this end, a majority of human rights-oriented CSOs met annually with the panel of eminent persons, chaired by Kofi Annan, which had obtained an extension in its mandate. They also met regularly with stakeholders, including the government, media, citizen representatives and CSOs, in order to gauge the pace of implementing the relevant agenda items that had been agreed upon in the national accord.

These meetings provided an opportunity for Kenyan CSOs to update Court representatives on developments concerning the national accord agreements. The caucuses also included an assessment of accountability for perpetrators and protection of witnesses and victims of the post-election violence. It became apparent that, as the cases progressed, witnesses felt intimidated, having confided information to provincial administrators as well as grassroots civil society groups. These platforms allowed ongoing communication through the framework of KNDR and, from time to time, directly though the outreach wing of the ICC, which helped to provide the Court with social and political context.Footnote ⁴⁸ These communication channels proved particularly important where victims and witnesses could not access the ICC directly.

Kenyan CSOs have also worked as intermediaries between victim communities and relevant divisions of the Court. When the ICC prosecutor announced the list of individuals against whom charges would be brought in December 2010, Kenyan civil society groups such as Kituo cha Sheria and the International Center for Policy and Conflict embarked on the registration of victims for purposes of victim participation.Footnote ⁴⁹ The engagement of local civil society ensured the registration of most victims, who ordinarily would not be aware of the process. As a result, the number of victims registered in the Kenyan cases is relatively high in comparison to other cases before the ICC.

Outreach programme

Although the ICC invests in an outreach unit in Kenya, its impact is small in comparison to the size of the country, the target audience and the domestic appetite for information about the Court. This also provided an avenue for correcting misunderstandings about the role of the ICC. CSOs under the umbrella of KPTJ, as well as in their own individual capacities, undertook to educate the general population on the process and procedure of the ICC, as well as on the nature of the cases before the Court.Footnote ⁵⁰

After Prosecutor Moreno-Ocampo announced the investigation into the situation in Kenya, Kenyans largely believed that the ICC had the capacity to, and indeed would, investigate and prosecute all perpetrators of the 2007–2008 post-election violence. Civil society explained the statutory and financial constraints of the ICC, and the OTP’s decision to prosecute only those bearing the greatest alleged responsibility for the post-election violence. Civil society thus had a role not only to ‘manage’ public expectations, but also to explain the enduring need for a domestic judicial mechanism to prosecute the mid-level and lower-level perpetrators. This role in civic education included partnerships with the media in order to have the widest reach possible, as well as to encourage a national debate on the intervention of the ICC, its possible impact and the function of its processes.

Guardians of the ICC process

After the prosecutor revealed the names of the six original accused, the Kenyan government began a concerted effort to prevent a trial from taking place. Four of the Kenyan government’s larger efforts to thwart the ICC process were as follows. First, members of parliament passed a unanimous motion to withdraw Kenya from the Rome Statute.Footnote ⁵¹ Although the motion was non-binding, it set the tone for the government’s subsequent actions. Second, the government tried to rally countries within the African Union (AU) to request the ICC to defer the cases or to refer them back to Kenya. Part of the narrative before the AU was that, although Kenya had the ability to address the violations that had been perpetrated, the ICC was imposing its regime upon Kenya. The AU Summit first endorsed Kenya’s deferral request on 14 January 2011 and subsequently made its own deferral request to the UN Security Council in July 2011, but its efforts were unsuccessful.Footnote ⁵²

The government also invoked Article 16 of the Rome Statute, directly requesting the Security Council to defer the cases based on the claim that they posed a threat to international peace and security. Prior to the filing of this application, the then vice president engaged in ‘shuttle diplomacy’, particularly in African countries that were members of the Security Council at the time, seeking to garner support for this application. Finally, in March 2011, the Kenyan government challenged the admissibility of the cases before the Court pursuant to Article 19 of the Rome Statute, requesting that the cases be declared inadmissible, and arguing that the adoption of the new constitution and associated legal reforms had opened the way for Kenya to conduct its own prosecutions for the post-election violence.Footnote ⁵³

In acting as the vanguard to the accountability process, civil society responded to each of these advances. Using its platform in the media, KPTJ member organisations explained that withdrawal from the ICC would not change the situation: a formal withdrawal would only take effect after a year and any case already within the ICC’s ambit could not be withdrawn.Footnote ⁵⁴ The alternative for Kenyans would be impunity, not only concerning the immediate violations perpetrated in the post-election violence but also with any other equivalent violation. As a result, the larger public remained supportive of the ICC.Footnote ⁵⁵

Civil society used several platforms to respond to the government’s efforts to obtain a deferral at the AU. In addition to the non-governmental forum held prior to the AU’s seventeenth summit,Footnote ⁵⁶ NGOs used their regional networks to circulate a memorandum/resolution explaining in detail the violations that had actually occurred in Kenya and the government’s lethargic reaction to addressing any of the violations. Observations and recommendations were then sent to the governments under which the various CSOs were based. Using civil society in different countries, this network brought the circumstances in Kenya to the attention of various governments and called upon them to comply with their international obligations.

The request for a deferral required the prosecution of the cases to represent a threat to international peace and security under the UN Charter.Footnote ⁵⁷ CSOs embarked upon a diplomacy campaign of their own, specifically targeting members of the Security Council to inform them of the violations that had been perpetrated in Kenya and the impunity that had prevailed as a result of the high stature of the alleged perpetrators. In the end, the Security Council did not grant the deferral. A subsequent attempt, brought in November 2013, also failed.Footnote ⁵⁸

The fourth challenge by the Kenyan government to the ICC trial process was its admissibility challenge. This application broadly argued that, since Kenya had promulgated a new constitution in 2010, any effort to remedy the institutional failures that had led to the violence, the judiciary would be (and indeed was being) reformed.Footnote ⁵⁹ Police reform would also be undertaken along with the entire justice sector; as a result, Kenya was willing and capable to prosecute perpetrators of the post-election violence. In a bid to participate in this process and shed light on the factual position on the ground, the Kenyan section of the International Commission of Jurists (ICJ-Kenya) sought to be enjoined as amicus curiae to the admissibility challenge hearing.Footnote ⁶⁰ ICJ-Kenya’s application was denied, although the ICC also ruled against the admissibility challenge. The Court found that whilst judicial reforms were indeed constitutionally mandated, a successful admissibility challenge requires the government to either have investigated or prosecuted, or be in the process of investigating or prosecuting, the same persons indicted before the ICC for ‘substantially the same’ conduct.Footnote ⁶¹

In fact, the Kenyan government had only prosecuted a few cases of the mid-level and low-level perpetrators due to what it said was a ‘lack of evidence’. While the Office of the Attorney General had investigated and prosecuted a few cases before the law courts immediately following the election violence, these cases were restricted to low-level perpetrators and the charges were also limited to simple offences. Subsequently, the investigations and prosecutions stalled altogether, supposedly for lack of evidence and in anticipation of the ICC or the establishment of a special tribunal.Footnote ⁶² A broader picture is better given by an internal audit report conducted under the attorney general in 2009, which concluded that the office had shelved two-thirds of the cases under investigation.Footnote ⁶³

Litigation as a civil society tool

While the Kenyan government has insisted that it has and will continue to cooperate with the ICC, the OTP has consistently complained about state non-cooperation.Footnote ⁶⁴ The prosecutor has alluded to the fact that, while formally cooperating, the government has found sophisticated ways of undermining the ICC’s work.Footnote ⁶⁵ Early during the investigation, the OTP was denied access to relevant security officers for interviews when an injunction was obtained to block the process. The Kenyan government was slow to appeal the decision of the local court, and at the time of writing, the matter remained unresolved.

Early signs of impending non-cooperation were also evident when Kenya invited and hosted Sudanese president Omar al-Bashir, despite the Court having issued an arrest warrant against him for genocide and crimes against humanity.Footnote ⁶⁶ Having both ratified and domesticated the Rome Statute, Kenya had an international obligation to arrest Bashir, but the government failed to comply with its Rome Statute obligations by declining to enforce the standing arrest warrants. On a subsequent occasion, when President Bashir was expected in Nairobi for a meeting of a regional body, ICJ-Kenya filed an application before the Kenyan High Court, seeking the enforcement of the arrest warrant and was successful in this regard.Footnote ⁶⁷ President Bashir was prevented from visiting and the venue of the meeting had to be changed at the last minute. In addition to the immediate deterrent effect of this decision, it also established an important precedent in the country regarding the enforcement of decisions of international judicial organs.

Advocacy

Following the confirmation of charges hearing in late 2011, charges were confirmed against William Ruto and Joshua Sang and, in a separate case, against Francis Muthaura and Uhuru Kenyatta.Footnote ⁶⁸ Challenges were immediately apparent. At the time, Mr Muthaura (against whom the charges were later withdrawn) held the position of head of civil service, while Mr Kenyatta was deputy prime minister and finance minister. Other than sitting in cabinet, these two accused were also part of the government’s organs determining national policy and responses on foreign relations, including cooperation with the ICC.Footnote ⁶⁹ Furthermore, their positions within government allowed them access to potential victims and suspects. As a member of the Witness Protection Agency board, the finance minister, in particular, could potentially access witness material.

Immediately after the charges were confirmed, CSOs began lobbying the government and garnering public support towards the resignations of both men. This process included writing open editorial articles in the national newspapers explaining the position to the public and elucidating the implications of the Kenyan state’s activities. The momentum gained traction with some international institutions and foreign governments, indicating their reluctance to interact with government officials who were facing charges of crimes against humanity. Muthaura eventually resigned and while Uhuru Kenyatta retained his position as deputy prime minister, he relinquished his finance docket.Footnote ⁷⁰

There was also substantial civil society advocacy during the electoral campaign period in 2012 and 2013. Kenyatta and William Ruto came together in a political coalition platform to campaign for Kenya’s 2013 presidential race as running mates for president and deputy president. The ICC became a key issue in the 2013 election, with Kenyatta and Ruto’s Jubilee Alliance casting the Court as a tool of imperialism, bent on illegitimately seeking to influence the outcome of the Kenyan election at the behest of Western powers. Although civil society groups sought to legally challenge the viability of accused persons running for high government positions, the High Court refused to rule on the matter, stating that only the Supreme Court could rule on presidential election matters.Footnote ⁷¹ Since the Kenyan cases before the ICC had barely begun at this stage, it was therefore not possible to bar Kenyatta and Ruto from holding public office. There was insufficient time between the ruling of the High Court and the election itself to properly adjudicate the matter.

In March 2013, Kenya held elections in which Kenyatta and Ruto were elected as president and deputy president, respectively. A petition was filed in the Supreme Court of Kenya challenging the results of the elections, but it declared that the elections were free, fair and credible, and that both men had been validly elected.Footnote ⁷² From this new position of power, both the president and deputy president launched a renewed onslaught against their cases. While appearing to abide by their obligations to the ICC, they nevertheless engaged in a series of diplomatic and judicial activities that have had the effect of undermining the ultimate objective: justice for victims.

In addition, the government continued to seek international support for its deferral campaign. By continuing to present a narrative of the ICC as a hegemonic tool of Western powers,Footnote ⁷³ the government succeeded in rallying African states gathered at the AU’s Twelfth Extraordinary Summit in October 2012 to pass yet another resolution calling for sitting heads of state and senior government representatives to be exempt from criminal prosecution.Footnote ⁷⁴ Citing the selectivity of cases before the ICC, which to date have only been brought against African nationals, the Kenyan government attempted to cast itself as a victim. Part of the resolution, which was the outcome of the extraordinary session, reads:

Once again, under a joint platform, CSOs lobbied against this position to their partners in different countries. Although Kenyan civil society was not granted an audience in the extraordinary session, it nonetheless developed a position paper arguing against the ‘neo-colonial’ narrative, and it shared this position throughout its networks for further advocacy with AU member states.Footnote ⁷⁶ The paper further argued that the resolution’s stance on the immunity of sitting heads of state and government would undermine the international human rights system, and in particular the core objectives of the Rome Statute.Footnote ⁷⁷

In November 2013, the Kenyan government made an additional attempt to halt the cases before the ICC’s governing body, the Assembly of States Parties (ASP), which was meeting in The Hague. The government sought to amend the rules of the ICC regarding prosecution of sitting heads of state, as well as their attendance at trial.Footnote ⁷⁸ Civil society present at the ASP made strong arguments against these proposed amendments. A coalition of organisations argued that the Rome Statute system deliberately ensured that there would be no immunity for any individual on the basis of official capacity. They contended that equality before the law for grave crimes is a fundamental tenet that is not only enshrined in the Statute but also recognised by international practice and, increasingly, adopted by national jurisdictions. Kenya therefore could not be an exception. Furthermore, while Article 143 of Kenya’s Constitution provides immunity for the president from criminal prosecutions, such immunity does not extend to a crime under any treaty that prohibits it and to which Kenya is party.Footnote ⁷⁹ Kenyan representatives also argued that most victims and affected communities have supported the ICC because the Court is capable of dispensing justice even when the alleged perpetrators are the most powerful members of society. Alternative possibilities for accountability are often unavailable through the judiciaries of post-conflict states.

Domestic litigation and reparations efforts

Following the ICC’s confirmation of the charges, Kenyan NGOs proceeded to file domestic cases to pursue justice for victims of post-election violence. Although these cases were not criminal in nature, they sought state responsibility for internal displacement, sexual violence and police shootings.Footnote ⁸⁰ One of the cases dealt specifically with victims of sexual and gender-based violence. The case was filed in February 2013 by a consortium of civil society organisations comprising the Coalition on Violence against Women (COVAW), Independent Medico-Legal Unit (IMLU), ICJ-Kenya, Physicians for Human Rights (PHR) as well as eight victims of sexual and gender-based violence.Footnote ⁸¹ There also has been litigation on behalf of internally displaced persons.Footnote ⁸² In choosing to interpret the principle of complementarity as ‘positive complementarity’, where the ICC and the national government work jointly to ensure accountability for international crimes, CSOs have been using domestic legislation to push this agenda.

CSOs also developed a reparations framework to complement the ICC’s Trust Fund for Victims (TFV). The framework, which was presented to the Truth, Justice and Reconciliation Commission and incorporated into its report, presents an option for the government to map victims of past violations, including of the 2007–2008 post-election violence. This is particularly important as the TFV has yet to make an assessment of the Kenyan situation as of the time of writing.

Investigation and prosecution

The KNHCR report on the post-election violence claimed that there may have been nearly 220 possible perpetrators.Footnote ⁸³ This could be a conservative estimate, and it demands developing either a prosecutorial strategy or judicial mechanism to prosecute these perpetrators and determine whether there may have been more. In tandem with the ICC’s intervention, civil society groups have been at the forefront of advocating for such a domestic mechanism, though such advocacy had to take place after the commencement of the Kenyan cases. Given the pervasive climate of impunity, many organisations feared that any domestic accountability process might be hijacked to justify an admissibility challenge before the ICC.

The two government initiatives towards accountability have included a multi-agency task force, established by the Director of Public Prosecutions in April 2012, and a proposal, advanced by the Judicial Service Commission (JSC), for a new division of the High Court of Kenya with jurisdiction over international crimes. The task force’s mandate was to review the 6,000 cases arising out of the violence that had been arbitrarily shelved by the Office of the Attorney General in 2009.Footnote ⁸⁴ The task force has reportedly reviewed all 6,000 cases and identified 1,716 suspects and 420 potential witnesses.Footnote ⁸⁵ It was also said to be prosecuting four murder cases, as well as preparing 150 files on sexual and gender-based violence for possible prosecution. However, the state has since announced a closure of all files due to insufficient evidence.Footnote ⁸⁶

Kenyan CSOs have engaged in the rudimentary stages of a proposal to establish an International Crimes Division (ICD) of the High Court. The JSC mandated a study into the viability of establishing such a division; however, the policy framework enlarges the scope of the ICD to encompass transnational crimes and fails to clearly address the question on retrospective application of the law.Footnote ⁸⁷ The widening of the scope of the proposed ICD includes crimes ranging from terrorism to cybercrime. This undermines the intention for a concise temporary mechanism established to address the specific violations from the post-electoral violence period. This is particularly clear since Kenya already has a comprehensive legislative framework and institutions to address cybercrime.Footnote ⁸⁸ The International Crimes Act 2008 can also address any international crime that may occur after its enactment. Although CSOs are sceptical of the proposed division, they are, at the time of writing, still engaging with the process.