In a statement issued following a special cabinet meeting, the Government of Kenya has announced that a “local judicial mechanism” will be established in order to probe the 2007-2008 post-election violence in the country.

The statement comes one day ahead of an announcement by the ICC Prosecutor concerning the situation in Kenya, during which he is expected to reveal the names of six accused for whom summonses to appear before the Court will be requested.

During Kenya’s worst period of violence since independence, more than 1,100 people were killed and a further 650,000 displaced as accusations of vote-rigging during the Presidential election eventually spiralled into ethnic killings. In a settlement mediated by former UN Secretary-General, Kofi Annan a power-sharing agreement was negotiated to end the violence.

The ICC is only “a court of last resort”

Until the announcement by the Kenyan Government, attempts to set up a special tribunal in the country had stalled. In September 2009, the ICC Prosecutor declared that the Court would address the post-election violence after Kenya failed to meet a deadline to establish such a national tribunal. However, acknowledging that “the only reason that the post-election violence cases are being investigated by the ICC is because there is no appropriate local judicial mechanism”, the Kenyan Government affirmed its belief that peace, reconciliation and justice cannot be achieved without a local mechanism.

According to the Government, Kenya would begin preparations to establish the local tribunal regardless of the outcome of the ICC Prosecutor’s announcement concerning the situation on 15 December 2010. In making its statement the Government of Kenya gave no indication of whether in setting up the tribunal it would seek to challenge the admissibility of any cases before the ICC, other than to state that the ICC remains only “a court of last resort”.

Found in the preamble of the Rome Statute, as well as articles 1 and 17, the ICC is based on the principle of ‘complementarity’, ensuring that national prosecutions of international crimes have priority. At the time of the original announcement of the ICC’s intention to proceed with investigations in Kenya, the Prosecutor stated his commitment to a “three-pronged approach” to accountability, comprising the ICC, national criminal proceedings and a truth and reconciliation commission. Any challenge to the admissibility of cases before the Court are governed by Article 19 of the Statute, with grounds for inadmissibility found in Article 17.

Situation in Kenya