Kenya missing its chance for justice, say top international lawyers

The International Criminal Court's investigation of ethnic clashes that left 1,300 people dead in Kenya will fall short of what a hybrid court could accomplish, says a team of top lawyers.

Kenya is missing its best opportunity for bringing those responsible for post-election violence to justice, a team of senior international lawyers tells the Monitor, adding that it's not too late for the country to establish a UN-backed hybrid court.

Currently, only the International Criminal Court (ICC) is investigating ethnic clashes that left 1,300 people dead and the country’s reputation for stability in shreds after the disputed 2007 election. While Kenya has a Truth, Justice, and Reconciliation Commission attempting to highlight those responsible for that violence, there is no domestic criminal investigation.

To establish a Kenya-based hybrid court of international and national lawyers it "would be up to the Kenyan government to make an approach to the Secretary General of the United Nations," Desmond de Silva, former chief prosecutor at the Sierra Leone court and one of Britain’s best-known international lawyers, told the Monitor during a visit to Kenya this week.

"There is no reason why the Secretary General shouldn’t agree," he says, adding that he and other international lawyers are willing to help establish a hybrid court here.

Hybrid court originally dismissed

Plans for proceedings in Kenya’s own notoriously corrupt courts were originally dismissed, with local and international critics arguing that judges could be bought off and cases bogged down in bureaucracy.

But having the ICC handle the matter without involving Kenya's justice system is now seen to have its shortcomings.

Fewer than six of the most senior figures are expected to be indicted for inciting and planning the ethnic violence, for instance, which means that the middlemen and machete-wielding foot-soldiers are likely to avoid prosecution. There are fears that such impunity could spark more violence ahead of the next national vote in December 2012. And the international team of lawyers argues that Kenyans may trust the process more if they see the trials unfold closer to home.

“I don’t think all the possible options were properly debated here,” Courtenay Griffiths, the British lawyer defending former Liberian President Charles Taylor at his war crimes trial, tells the Monitor. “It seemed to be a straight choice between Kenyan courts or the ICC. There seems to have been very little debate about the model of a hybrid court in [Kenya], under the United Nations.”

Benefits of a hybrid court

Such a court was set up in the West African country of Sierra Leone after the civil war there ended in 2002. The Special Court for Sierra Leone indicted 11 people – mostly rebel leaders – eight of whom have been convicted and handed jail sentences of between 15 and 52 years. Mr. Taylor is still on trial, and the remaining two indictees died.

“[A hybrid system] is the preferable system for Kenya, too. There’s no question about it,” says Mr. de Silva. “There is public participation in the administration of justice, they can see it happening first hand, that things are not being swept under the carpet. When something happens in a distant country far, far away, of which the average villager here knows little, they can easily feel that justice is simply not being done.”

If a hybrid court is established, he adds, then the ICC's investigation will "fade away."

But Kenyans have little trust in any local mechanism to bring those responsible for one of the country’s darkest hours to justice. A poll last year found almost 70 percent favored trials at the ICC.

Why many Kenyans prefer the ICC

Even if a hybrid court were established in Kenya under the UN, people fear that powerful politicians – said to be behind the violence – would be able to influence hearings or intimidate witnesses.

“We’ve had ethnic clashes here going back to the 1990s, and they have never resulted in any domestic process to bring people to account,” says Mwalimu Mati, director of the human rights watchdog Mars Kenya.

There have been recent attempts to establish a special tribunal to investigate the 2007-08 violence – a kind of special court for Kenya – but they have all failed to pass through Parliament.

“The fact is the momentum is rolling with the ICC,” says Mr. Mati.

“That’s what Kenyans want, it’s what they believe will be credible, something that can’t be tampered with. A true UN-Kenya special court was never an option that’s been suggested, and it is probably too late to start it all now.”

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