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Kenya: Mutunga Sets Up an International Crimes Division

By Judie Kaberia, 30 April 2013

Nairobi — Chief Justice Willy Mutunga is on Tuesday expected to preside over the launch of the International Crimes Division (ICD) of the High Court of Kenya in Nairobi.
This will be in line with the enactment of the International Crimes Act for Kenya, Act No. 16 of 2008.
Kenya's High Court under Section 8 of the International Crimes Act has the jurisdiction to conduct trials over persons who are responsible for international crimes committed locally or abroad by a Kenyan, or committed in any place against a Kenyan.
That jurisdiction has been in place since January 1, 2009, when the International Crimes Act, 2008 became effective.
The Act domesticated the Rome Statute which defines and incorporates the crimes of genocide, war crimes and crimes against humanity into Kenyan law.
During the launch of a media project run by the Institute on War and Peace Reporting (IWPR) and the Wayamo Communication Foundation in November last year, Mutunga announced that steps were underway to establish the ICD to try cases stemming from the 2008 post election violence, as well as other crimes under international law.
Reverend Samuel Kobia, a member of Kenya's Judicial Service Commission has been in charge of a five-member committee that drew the road map of ensuring the ICD is fully facilitated to carry out prosecutions independently.
He said the ICD would have a special prosecutor.
Kobia said Kenyans had borrowed certain elements from the analogous court in Uganda.
Attorney General Githu Muigai reflected the continuing caution in the government about prosecuting cases dating from 2008 by suggesting that this was not in fact the institution's primary purpose.
"It is at the discretion of the Director of Public Prosecutions," he said. "But this [the post-election violence] is not the primary reason why the ICD is being set up. This is a court set up to deal with cross-border crimes like piracy, human trafficking and drug trafficking among others, but if the Director of Public Prosecutions has other cases he feels are of international magnitude they will definitely be tried here as well."
Kenya has made several attempts to challenge or delay the ICC proceedings. There are concerns that officials might try to use the ICD to counter the Hague process.
Muigai in an interview last year told Capital FM News that establishing the ICD was not about challenging the ICC cases, and that Kenya would not seek to have the Hague proceedings against the three suspects replaced by trials in a national court.
"It was made clear from the onset that this special court was not intended for the cases pending in The Hague, so such fears should not arise at all," he said.