Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya
Bjork, Christine, Goebertus, Juanita, Yale Human Rights and Development Law Journal
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.
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. …