The post-election violence in Kenya : domestic and international legal responses / Sosteness Francis Materu.
2015
KSK4855 .M38 2015 (Map It)
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Details
Title
The post-election violence in Kenya : domestic and international legal responses / Sosteness Francis Materu.
Published
The Hague, the Netherlands : T.M.C. Asser Press ; Berlin : Springer, [2015]
Copyright
©2015
Call Number
KSK4855 .M38 2015
Former Call Number
Ken 806 M419 2015
ISBN
9789462650404
9462650403
9789462650411 (eBook)
9462650403
9789462650411 (eBook)
Description
xviii, 275 pages ; 25 cm.
System Control No.
(OCoLC)898114453
Summary
Since the historic Nuremberg Trial of 1945 an international customary law principle has developed that commission of a core crime under international law - war crimes, genocide, crimes against humanity and aggression - should not go unpunished. History shows, that when in Africa such violations occurred, especially as a result of election disputes, national and regional actors, including the African Union, resorted to political rather than legal responses. However, when crimes against humanity were alleged to have been committed in Kenya during the 2007-2008 post-election violence, a promising road map for criminal accountability was agreed upon alongside a political solution. In the spirit of this road map, the author analyzes the post-election violence in Kenya from a legal point of view. He extensively examines legal options for domestic criminal accountability and discusses both retributive (prosecutions) and restorative justice (mainly truth commission) mechanisms, being the main legal responses to the gross violations of human rights. Furthermore, he thoroughly investigates the Kenya situation before the ICC and the legal-cum-political responses to the ICC intervention in Kenya. Practitioners and academics in the field of international criminal law and related disciplines, as well as political sciences and (legal) history will find in this book highly relevant information about alternative legal approaches of the fight against and punishment of crimes against humanity, as defined under the ICC Statute.
Note
Since the historic Nuremberg Trial of 1945 an international customary law principle has developed that commission of a core crime under international law - war crimes, genocide, crimes against humanity and aggression - should not go unpunished. History shows, that when in Africa such violations occurred, especially as a result of election disputes, national and regional actors, including the African Union, resorted to political rather than legal responses. However, when crimes against humanity were alleged to have been committed in Kenya during the 2007-2008 post-election violence, a promising road map for criminal accountability was agreed upon alongside a political solution. In the spirit of this road map, the author analyzes the post-election violence in Kenya from a legal point of view. He extensively examines legal options for domestic criminal accountability and discusses both retributive (prosecutions) and restorative justice (mainly truth commission) mechanisms, being the main legal responses to the gross violations of human rights. Furthermore, he thoroughly investigates the Kenya situation before the ICC and the legal-cum-political responses to the ICC intervention in Kenya. Practitioners and academics in the field of international criminal law and related disciplines, as well as political sciences and (legal) history will find in this book highly relevant information about alternative legal approaches of the fight against and punishment of crimes against humanity, as defined under the ICC Statute.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
1.
Introduction
1
1.1.
Preliminary Remarks
1
1.2.
Setting the Context
2
1.3.
Objectives
8
1.4.
Chapters Outline
9
References
10
pt. I
Historical Roots of Ethnic Violence in Kenya
2.
Background to the Post-Election Violence
15
2.1.
Introductory Remarks
16
2.2.
Historical Role of Negative Ethnicity in Kenyan Politics
17
2.2.1.
Transition from Colonialism to Independence
17
2.2.2.
The Regionalism and Centralism Ideologies
19
2.3.
The Rise of Monopartysm and Consolidation of Dictatorship
21
2.3.1.
From De Jure Multipartysm to De Facto Monopartysm
21
2.3.2.
Emergence of Factions Within KANU (1964-1966)
22
2.3.3.
Suppression of Opposition Parties (1966-1982)
23
2.3.4.
From Kenyatta to Moi: Tyrannical Rule Consolidates
23
2.4.
Resumption of Political Pluralism and Proliferation of Political Alliances
26
2.4.1.
Resumption of Multipartysm
26
2.4.2.
Politics of Alliances and Party Hopping
27
2.5.
Criminal Gangs, Election Violence and Impunity
34
2.5.1.
Use of Criminal Gangs for Political Purposes
34
2.5.2.
Trends of Election Violence
36
2.5.3.
Commissions of Enquiry and Culture of Impunity
38
2.6.
Chapter Summary
41
References
41
pt. II
Post-Election Violence, Domestic Legal Options and Responses
3.
The Post-Election Violence and Immediate Aftermath
47
3.1.
Introductory Remarks
48
3.2.
The Violence
49
3.2.1.
Immediate Trigger
49
3.2.2.
Extent, Organization and Nature
50
3.2.3.
Incitement to Violence
54
3.3.
Mediation Process
56
3.4.
Inquiries into the Violence and Road Map for Criminal Accountability
57
3.4.1.
Commission of Enquiry into the Post-Election Violence
57
3.4.2.
Other Inquiries
58
3.4.3.
Findings of the Inquiries: Were Crimes Under International Law Committed?
59
3.4.4.
Agreement and Recommendations Pertaining to Criminal Accountability
63
3.5.
The Proposed Special Tribunal for Kenya: An Overview
66
3.5.1.
Salient Features of the Tribunal
67
3.5.2.
Evaluation
69
3.5.3.
Failed Attempts to Establish Special Tribunal
72
3.6.
Consequences of Failure to Create the Proposed Special Tribunal
74
3.7.
Where to Prosecute the Big Fish? General Domestic Perceptions
75
3.8.
Chapter Summary
80
References
81
4.
Criminal Accountability at Domestic Level
85
4.1.
Introductory Remarks
86
4.2.
Legal Position Regarding Enforceability of Core Crimes in Kenya
86
4.3.
Alternative Legal Frameworks for Domestic Prosecution of Crimes Linked to the Post-Election Violence
89
4.3.1.
Prosecuting as Domestic "Ordinary" Crimes
89
4.3.2.
Prosecuting as Crimes Against Humanity as Such
115
4.4.
Issues Relating to Exercise of State Prosecutorial Function
129
4.4.1.
Position Under the 1963 Constitution
129
4.4.2.
Current Position
130
4.4.3.
Interim Conclusion
134
4.5.
Chapter Summary
135
References
136
5.
Alternatives and Adjuncts to Domestic Prosecutions
141
5.1.
Introductory Remarks
142
5.2.
Transitional Justice in Kenya Through a Truth Commission
143
5.2.1.
Prelude to Truth Commissions
143
5.2.2.
Introduction to the Kenyan Truth, Justice and Reconciliation Commission
144
5.2.3.
Analysis of TJRC's Mandates Vis-a-Vis Criminal Accountability for the Post-Election Violence
150
5.3.
Vetting of Judges and Magistrates
168
5.4.
Chapter Summary
170
References
171
pt. III
International Responses
6.
The Kenya Situation Before the ICC
177
6.1.
Introductory Remarks
178
6.2.
Issues Relating to Trigger of Jurisdiction
179
6.2.1.
Proprio Motu Investigation
179
6.2.2.
The Waki Commission on Trigger Mechanism
181
6.2.3.
Responses of ICC Prosecutor and Kenyan Government to Trigger Mechanism
182
6.3.
Issues Relating to Parameters of ICC's Investigation
185
6.3.1.
Temporal Scope of Investigation
186
6.3.2.
Subject-Matter Jurisdiction
191
6.3.3.
Locating Crimes in Mount Elgon Area in the Investigation
192
6.4.
Issues Relating to Substantive Criminal Law
194
6.4.1.
Prosecutorial Discretion Vis-a-Vis Scope of Charges
195
6.4.2.
Whether Acts Committed During Post-Election Violence Amounted to Crimes Against Humanity
200
6.5.
Issues Relating to Complementarity
216
6.5.1.
Meaning of Complementarity
216
6.5.2.
Evaluation of "Unwillingness" and "Inability" in Relation to Kenya
218
6.5.3.
Inaction as a Component of Complementarity
219
6.6.
Other Responses to ICC's Intervention
230
6.6.1.
Attempts to Have the Cases Deferred Under Article 16
231
6.6.2.
Attempts to Resort to Regional Criminal Jurisdictions
234
6.6.3.
Threats to Withdraw from the ICC Statute
237
6.7.
The Future of the Kenyan Cases at the ICC
240
6.7.1.
Election of the ICC Suspects to Presidency
241
6.7.2.
The Integrity Case
243
6.7.3.
Cooperation from the Kenyan Government
247
6.7.4.
ICC's Relationship with the AU in View of the Kenyatta and Ruto Cases
248
6.7.5.
Interim Conclusion
253
6.8.
Impact of the ICC's Intervention in Kenya
254
6.9.
Chapter Summary
255
References
256
7.
Conclusion
265
Index
271