Book Chapter: Crimes against Humanity in Kenya' Post-2007 Conflicts: A Jurisprudential Interpretation

Abstract

Widespread economic disparities under Kenya’s post-independence constitution generated revolutionary pressures to transform authoritarian rule of sectional governance. Amid ethnic conflicts protesting President Kibaki’s 2007 re-election, mass atrocities were committed. A 2008 National Accord brokered power-sharing between Kibaki’s PNU and Prime Minister Odinga’s ODM. In 2010 the Government of National Unity promulgated a new constitution. Nonetheless, in exercise of its complementary jurisdiction, the International Criminal Court expeditiously authorized six investigative warrants, confirming charges against four suspects alleged to be indirect co-perpetrators bearing the greatest responsibility for crimes against humanity. However, in 2013, a “coalition-of-theaccused” between Uhuru Kenyatta and William Ruto, won the presidency. Numerous witnesses subsequently disappeared, died or withdrew. Consequently, the judges compelled the Jubilee government – in Ruto’s case to facilitate attendance by non-voluntary witnesses – and in Kenyatta’s case to produce his financial and other records. Judicial activism is justified, if the ICC is to effectively protect victims. However, without state co-operation, the ICC can neither investigate nor enforce these orders. This book evaluates conflicting interpretations of the Rome Statute in search of judicial creativity, amid ICC’s declining legitimacy. Unless safeguarded by the Victims and Witnesses Unit, activist judgments prioritizing victim’s rights to retributive justice can jeopardize the rights of witnesses.