By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)
On Monday the pre-trial chamber ruled unanimously that the government had not embarked on any investigations and dismissed the Kenyan Government’s case. Earlier in the year after the expensive failure of shuttle diplomacy, the government made application challenging admissibility of the two Kenya cases at the International Criminal Court. The grounds of challenge were that Kenya is on the path of constitutional and judicial reform and can therefore investigate and prosecute those most culpable for the post election violence.
In evidence of this the government’s application had as annexures:
- A letter from the Attorney General to the Police Commissioner asking him to investigate and determine the identities of those who masterminded the violence.
- A list of concluded cases which related to crimes during the post election violence,
- The promulgation of the new Constitution,
- The number of Bills that had been enacted by Parliament to reform the judiciary, the police and the Department of Prosecutions.
In my opinion these 4 elements were probably the strongest part of the governments case but also most the problematic. As well as revealing of weakness not only in the claim of ongoing reforms but also to the claim that Kenya is as a result of the reforms ready willing and able to investigate the six ICC suspects.
The letter from the Attorney General to the Police Commissioner ordering him to investigate the crimes was written the day after and the government filed its case. Which makes me wonder about the political will to investigate the masterminds of the election violence considering the crimes took place more than three years. Regarding the list of concluded cases relating to post election violence it would be interesting to see where these have been reported? The Pre-trial Chamber stated that the government ‘failed to provide the Chamber with any information as to the conduct, crimes or incidents for which the suspects are being investigated or questioned’
We did promulgate a new constitution however the implementation has been slow at best and fraught with inter-party wrangles, missed deadlines, and confusion over interpretation. So though the constitution was promulgated given the pace of implementation and the seeming roadblocks and confusion at every stage it will be a while before reforms realised. As far as the number of the Bills of enacted, its amazing that this was a submission to support the fact that Kenya can try the ICC cases considering when only two constitutional bill had been passed at the time of the application.
Of course the AG has already stated Kenya’s intention to appeal the decision, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence, though on the points on which the appeal will hinge are unclear. Either way, the government has five days to launch the appeal.