Capital FM (Nairobi)

9 February 2014

Kenya: Stakeholders Reach Consensus On Proposed ICD Court

Nairobi — A meeting held in Naivasha last week to deliberate on the formation of the International Crimes Division of the High Court (ICD) ended with far-reaching recommendations which include changing the name to suit the crimes it will be mandated to try under the International Crimes Act 2008.

Local and international stakeholders who met at the Sawela Lodge in Naivasha are also in agreement that the proposed court should try pending cases arising from the 2008 post election violence, even after the Director of Public Prosecutions Keriako Tobiko categorically stated that no evidence was available to pursue the alleged perpetrators.

"Notwithstanding the DPP's statements that most cases related to 2007-8 post election violence do not meet the threshold for prosecution, the ICD has jurisdiction to preside over election-related violent crimes, and there needs to be justice for victims," a resolution arrived at after the meeting states in part.

A multi-agency taskforce formed by the DPP in June 2012 had concluded that none of the over 4,000 post election investigation files reviewed were prosecutable due to lack of evidence, while others had already been investigated and prosecuted as 'ordinary' crimes.

"The sad and painful truth therefore, is that at present there are no cases arising of out the 2007-8 post election violence that can be prosecuted before the ICD," the DPP had told the Naivasha meeting in his speech, at the opening on Wednesday leaving most of the stakeholders worried that middle-level perpetrators may never face justice.

But with the latest resolution from the meeting, there's hope that most of the cases will be tried.

Besides the post election violence, there is consensus that the proposed court will handle other serious crimes, including but not limited to organized crime, piracy, terrorism, money laundering, counterfeiting, and wildlife crimes.

However, the stakeholders are in agreement with the DPP that "there is no need to form an independent prosecutor and that the office of the Director of Public prosecutions would handle the prosecutions."

The DPP had proposed "strengthening existing offices rather than coming up with others" which are likely to duplicate the work done by his office.

The Office of the DPP is an independent office created under Article 157, which according to Tobiko, would be abused if the ICD will have an independent prosecutor who is not under his office.

"With respect, this proposal is at best a misnomer and at worst a constitutional fallacy. The ODPP is not any less independent than the proposed ICD or indeed the Judiciary as a whole. There is therefore no basis for the proposal to create a parallel Prosecution Office for the ICD," he argued.

In a resolution seen by Capital FM News, the stakeholders noted "the concerns that creating the ICD might create the perception of a dream team which could lower the morale and capacity among judicial officers."

It was also suggested that the court's name change from the proposed ICD to a name that will suit the crimes to be tried by the court, with suggestions such as International and Complex Crimes Division (ICCD), International and Organized Crimes Division (IOCD) or International and Serious Crimes Division (ISCD).

The stakeholders discussed that the court would initially domiciled in Nairobi and Mombasa, with suggestions for further evaluation.

Stakeholders were also in agreement that the proposed court should not be modeled on the International Criminal Court (ICC), but should instead be "customized to Kenyan practice and procedure to serve Kenyan interests."

Evaluation of the high court's jurisdiction and the practical and financial impact of the ICD was found to be necessary, with stakeholders recommending "an evaluation be based on such other factors as the gravity, complexity, nationality of defendant, cross-border nature of the offence, and such other factors."

Following the Naivasha, it was agreed that an urgent colloquium be convened to address development of the ICD with judges, magistrates, and key stakeholders in the criminal justice system.

The colloquium will address such other issues like the how the proposed court will work closely with the Witness Protection Agency, following concerns that the proposed court "might have issues requiring customization of protection measures."

An audit of relevant cases will also be conducted to assist allocation of recourses in creation of the ICD, with the role of the police identified as a key part of developing and investigating cases for the ICD.

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