A dynamic approach to assess the international criminal court's performance in the Kenya cases

• Author: L. Juma,Khamala C. A.
• Date: 31 May 2017
• Published date: 31 May 2017
• Record Number: lesotho_v25_n2_a2
• Pages: 39-73
• DOI: 10.10520/EJC-e9dcefddf

A DYNA MIC APPRO ACH TO ASSESS THE INTER NATIONAL

CRIMINA L COUR T’S PERFOR MANCE IN THE KENYA CASES

Juma, L.  & Khama la, C. A.**

Abstract

Victims of crimes against humanity perpetr ated during

Kenya’s pos t-2007 conflicts may feel aggrieved by the

Internationa l Cri minal Court’s discontinu ance of all

Kenya cases without having found t he suspects either

culpable or n on-culpable. Neit her did the suspects bene fit

from acquittals. Unprecede ntedly, Ruto and San g’s

charges were vacated at half-time. Cases against othe r

suspects were withdr awn. Given the circu mstances w hich

led to the IC C’s intervention in the Kenyan situation, this

paper argues that in l ieu of ei ther quantitative or

qualitative studies, arguments of various proxy

approaches for evaluating ju dicial per formance, are

problematic. Ne ither judicial independence, rule -

compliance, c ommunity of purpose, nor even institution al

design, adequately measure judicial per formance. Besides

interrogating limitations of using such proxies, the paper

appraises the merits of constru cting a modi fied vers ion of

the goal-base d approach. It will de monstrate t hat by

incorporating bo th process-oriented as well as strateg ic

constituency models, a more dynamic evaluative

methodology can be developed for measuring the ICC’s

performance i n the Kenya cases.

 Professor o f Law, Rhodes University.

**Andrew W. Mellon Postdocto ral Fellow, Facult y of Law, Rhodes

University.

40 LL J Vol. 25 No.2

INTROD UCTION

This paper aims to develop a dy namic approach to asses s the

Internatio nal Criminal Court’s ( ICC)

1

performance in the Kenya

cases, namely, The Prosecutor v William Samoei Ruto, Henry Kiprono

Kosgey and Joshua Arap Sang (the Ruto case)

2

and The Prosecutor v

Francis Kirimi Mutha ura, Uhuru Muiga i Kenyatta and Mohamme d

Hussein Ali (the Kenyatt a c ase).

3

In lieu of empirical evidence, the

paper attempts to c onstruct a principle d p roxy approa ch for

assessing its performanc e. Reassess ment is timely b ecause the I CC

Office of the Prosecutor’s (O TP) selection o f c ases is curre ntly

prosecuting nine out of 10 cases from Africa.

4

That prosecutorial

policy st arkly polarizes legal opinion among lawyers, policy makers

and stak eholders, thus creating a North- South split. Unlike

reformists who propose ASP am endments, extremists, mainly some

African countries, call for withdrawal from the treaty.

5

Emergent

controversy is attributab le to contra dictory evaluations of ICC’s

performanc e, creating need to develop more objective assessment

methods.

1

Rome Statute of the Inter national Criminal Court, 17 July 1998 e ntered

into fo rce on 1 July 2002, a vailable at https:/ /www.ic c-

cpi.int/n r/rdonlyr es/ea9ae ff7-5752-4 f84-be94

0a655eb30 e16/0 /rome_stat ute_engl ish.pdf (La st accessed 29 Ma y 2016).

2

Judgm ent on th e appeal of the Republic o f Kenya against the decision of

Pre-Trial Chamber II of 30 Ma y 2011 Prosecutor v Fr ancis Ki rimi Mutha ura,

Uhuru Muigai Kenyatta and Moh ammed Husse in Ali, Sit uation in the

Republic of Kenya, availabl e at https:// www.ic c-

cpi.int/Co urtRecor ds/CR2 011_1381 9.PDF (Last a ccessed 29 Ma y 2016).

3

National Accord and Re conciliation Act , No.4 of 2008.

4

See e .g. J. Verinijune, “The Prosecutor and the Pr esident” New York Times

22 June 201 6.

5

Reuters, “South Africa plans to leave International Crimin al Co urt,” 11

October 2015, a vailable a t http:/ /www.r euters.co m/article /us- safrica-ic c-

idUSKC N0S50HM 20151011 (La st accessed 21 August 201 6).

41

A little bit of background may be useful here. Violence erupted in

Kenya upon the opposition’s r ejection of what it clai med were

rigged 2007 presidential elections.

6

It is this violence that trigg ered

ICC involvement. It will be recalled that Kenya signed the Rome

Statute on 11 A ugust 1999, and ratified it on 15 March 2005, thus

becoming the 98th State Party to t he Statute. In the wake of post-

2007 election violence, Africa n Union mediation,

7

pr ovided a

shadow for pow er-shari ng negotiatio ns which broker ed a

Governme nt of N ational Unity (G NU).

8

This new government

established a Commission o f Inqui ry into Post-Electio n Violence, t o

investigate the cause of the violence and also identify i f any crimes,

including international crimes had been committed. The

Commissio n’s r ecommend ed pr osecution both locally and

internation ally a nd in vited t he involvement of th e ICC. Amid

government al inaction r egarding alleged crimes against humanity,

particularly its refusal to establish a local tribunal to deal with

crimes, the OTP exercised its article 15 propr io motu

9

power under

the Rome Statute to intervene. In 2011 the ICC Appeals Chamber

6

P.Waki, Report of the Fin dings of the Commission of I nquiry in th e Post-

Election V iolence in Ken ya. October 2008 ,

http://ww w.afri canexec utive.com /modul es/maga zines/ne ws.ph p?id

news main =1&id news= 53on (Last acce ssed 17 Februar y 2018).

7

J. Allen , “Kenya : An nan Send s Pol ls Viol ence Names to Worl d Cour t,”

allAfrica, 9 July 2009, availa ble at

http://all africa.co m/storie s/2009070 90719 .html (Last accessed 2 9 May

2016); K. Annan & N. M ousavizadeh, Interventi ons: A Life in W ar and Pe ace

(2012).

8

Judgm ent on th e appeal of the Republic o f Kenya against the decision of

Pre-Trial Chamber II of 30 May 2011, 30 Aug ust 2011, Appeals Chamber,

Prosecutor Muthaura, Keny atta and Ali, available at

https://w ww.icc -cpi.int /Pages/re cord.as px?doc No=ICC -01/09 -02/11-

274 (Last ac cessed 21 June 201 6).

9

Proprio motupowers ena ble the OTP of an International t ribunal to initia te

investigat ions on their ow n accord. See D. Sarooshi, Pro secutorial policy

and the I CC,(2004) 2 Int’l Crim. Justice 9 40.