By Evelyne Asaala
Abstract
This study critically analyses the challenges facing effective prosecutions of international crimes in Kenyan courts. In light of the numerous countries undertaking transitional justice processes – both in Africa and throughout the world ‒ a study of this nature becomes a fundamental contribution in guiding municipal adjudication of these offences. How should local courts effectively prosecute the actual perpetrators of international crimes who may not necessarily bear the greatest responsibility? In other words, how should local criminal law systems and legislations effectively respond to international crimes? To this end, this chapter seeks to inform better criminal law processes that set out to achieve their objectives effectively over international crimes in national courts.
This chapter is divided into three main parts. After a brief introduction, the second part examines the key challenges towards effective local prosecutions as well as the impact of these local prosecutions on transitional justice in Kenya. The essence of this section is to discuss Kenya’s experience in prosecuting international crimes. In its analysis, this part considers the jurisprudence put forth by the Kenyan courts regarding prosecution of PEV-related crimes. However, because of the limited scope of this contribution only a selected number of the PEV-related cases are reviewed. The Kenyan cases that were confirmed by the ICC and the geographical coverage of their charges are the criterion that this chapter has used in selecting the cases under discussion. A discussion on the challenges also adopts a thematic approach, which highlights the following aspects: jurisdiction, dubious investigations, local ownership and legitimacy and lack of political will. Finally, the study draws various conclusions and suggests the way forward.
