Professional Documents
Culture Documents
AT
THE STAKEHOLDERS WORKSHOP ON THE ESTABLISHMENT
OF AN INTERNATIONAL CRIMES DIVISION AT THE HIGH
COURT OF KENYA HELD AT SAWELA LODGE
1.
2.
3.
The ICD is merely administrative construct to facilitate the High Court in exercising
its jurisdiction under the ICA. The Hon the Chief Justice can administratively
create such a division; as he has already done in relation to other thematic areas:
e.g. family division, criminal division, constitutional and judicial review
division, etc. There is therefore no need for legislation to create the ICD.
4.
(ii)
Whether there are presently any cases arising out of the 2007/08 PEV
that are ripe for prosecution before the ICD?
(iii)
(iv)
The proposed expanded jurisdiction of the ICD to include the socalled transnational crimes.
6.
7.
The JSC Committee proposes an ICD with composite structure modelled on the
ICC and on other International Criminal Tribunals. Such ICD, it is proposed, will
be housed in a separate facility where departments (e.g. Investigations,
Prosecutions, Witness Protection, Registry) which the ICD will work with will also
be housed.
8.
I hold the firm opinion that there is neither a reason nor a need to replicate the
international criminal tribunals or the ICC models in the guise of an ICD. That
opportunity was long lost when Parliament rejected the Special Tribunal Bill.
9.
The ICD cannot be anything else than a trial division of the High Court. It
cannot have an Office of the Prosecutor (OTP) or its own investigative
arm/division. Investigations and Prosecutions under the Constitution of Kenya
do not and cannot lie with or under the High Court. The principle of separation
of powers must be respected.
10.
I think that the High Court should have its own ICD; the ODPP should also
have its own specialized ICD and the same for the Directorate of Criminal
Investigations.
11.
Indeed, I have already created within the ODPP a specialized Division to deal
specifically with crimes arising under the ICA and other crimes of similar
nature and character. The said division is staffed with well-trained staff and its
capacity continues to be enhanced.
12.
(ii) Are there cases arising out of the 2007/08 that are ripe for trial before the ICD?
13.
None of the cases arising of the 2007/08 PEV was ever investigated or charged
under the ICA within the framework of the Rome Statute. Those cases were
investigated and the ones charged were prosecuted as ordinary crimes under
the Penal Code or, in the case of SGBV cases, under the Sexual Offences Act.
14.
15.
The sad and painful truth therefore is that at present there are no cases arising out
of the 2007/08 PEV that can be prosecuted before the ICD.
17.
18.
There is already established by Article 157 of our Constitution, the Office of the
Director of Public Prosecutions (the ODPP), which enjoys the same
constitutional autonomy and independence as that enjoyed by the Judiciary.
19.
Constitutionally, 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.
20.
What
we
should
be
concerned
about
are
the
Specialisation;
Skill,
22.
Although members of the Division have received some specialized training on the
subject, more would still be required in terms of capacity building and provision of
adequate human and financial resources.
23.
That said, should particular cases arise which, due to their nature or complexity,
would require skills and expertise not available within the Division, I would be
prepared to appoint a special Prosecutor or a team of Special Prosecutors
(whether local or foreign) to prosecute such cases assisted of course, by
Prosecution Counsel from that Division.
It has been proposed that the jurisdiction of the ICD be expanded to cover the socalled transnational crimes such as:
25.
Terrorism;
Cybercrime;
Maritime Piracy;
Drug Trafficking;
Money-Laundering;
Human Trafficking;
However, in deciding whether these crimes should be tried by the High Court
(ICD), the following pertinent issues MUST be taken into consideration;
i.
ii.
iii.
The specific crimes now proposed to be tried by the ICD, have been
(and continue to be) effectively prosecuted (by ODPPs Prosecutors)
before and tried by the Subordinate Courts.
iv.
v.
What
Vii.
27.
It is therefore clear to me that this aspect requires a more thorough and focussed
Conclusion
28.
I wish to thank the judiciary for spearheading this noble initiative. Although we got
involved in this initiative rather late, nonetheless, we are willing to participate fully
in the remaining parts of the on-going consultative process.
29.