5 May 2012

East Africa: Kenya Poll Violence Suspects' Trial Splits Region

Arusha — TWO East African Community organs are heading for a collision course over recent proposals to have suspects of Kenya's post election violence be tried in Arusha.

While the proposal was unanimously passed by members of the East African Legislative Assembly during their last week's sessions, the other organ, the East African Law Society is opposing the idea.The parliamentarians advised that the four Kenyan suspects, among them top ministers, who are facing charges at the International Criminal Court in The Hague, should have their cases transferred to Tanzania and be tried at the Arusha-based East African Court of Justice.

"The East African Court of Justice has neither the capacity nor expertise and the EACJ does not have jurisdiction as per the community treaty to entertain international criminal matters," the EALS President, Dr Wilbert Kapinga, pointed out in an official statement.

"This follows the East African Legislative Assembly resolution that the East African Community Council of Ministers should immediately embark on a process of requesting the transfer of proceedings, for the accused four suspects in the respect to the 2007 Kenyan post-election violence, from the International Criminal Court and instituting them in the East African Court of Justice."

"It is on the basis that the acts complained of are contraventions of the Treaty for the Establishment of the East African Community at its 4th Meeting of the 5th Session held in Nairobi, Kenya on April 26, 2012, the East Africa Law Society has petitioned -- The Chairperson of the East African Community Heads of States Summit, The Hon. Speaker of the East African Legislative Assembly, The Chairperson of the East African Community Council of Ministers, and the Secretary General of the East African Community -- urging caution on the implementation of the said resolution."

In the statement dated April 30, 2012, the East Africa Law Society reminded the East African Community organs that the East African Court of Justice has neither the capacity, expertise nor jurisdiction to entertain international criminal matters; and neither does the Rome Statute provide an avenue for States or Intergovernmental Organizations to request for relocation of cases (after the confirmation of charges).

The East Africa Law Society also called into question the practicability of the Resolution in the face of the latest draft East African Community Protocol on extending the jurisdiction of the East African Court of Justice, in which all the East African Community partner states have agreed to exclude any reference to Human Rights Jurisdiction for the court; and yet International Criminal jurisdiction is inextricably intertwined with human rights.

If the partner states, however, are adamant that they want to relocate the cases to the East African Court of Justice, the East Africa Law Society insisted that they must ensure a total review and restructuring of the Court to grant it the envisaged Criminal Jurisdiction, capacitate it to effectively undertake the investigative and prosecutorial functions inherent in Criminal Matters, and ensure that the process of appointment of judges is transparent, participatory and competitive.

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