TJRC Commissioners Sworn In as Justice Minister Dares/Urges ICC to Issue Warrants

Individuals recently appointed to serve on the TJRC were sworn in on Monday 2 August 2009. They are however unlikely to commence operations in view of the recently announced plans to amend the TJR Act 2008 that creates the commission to strengthen it.

Speaking at the event, Justice Minister Adv Mutula Kilonzo stated that the TJRC cannot try international crimes and suggested that the ICC should proceed with issuing arrest warrants if it considers that the relevant thresholds have been met.

This raises one important question that must be answered in respect of a possible role of the ICC: can the ICC come in? Before addressing the question as to how the ICC jurisdiction should be triggered (this has serious implications), the question is whether the violence in Kenya discloses any ICC crime: genocide, war crimes and crimes against humanity. The issues of war crimes does not arise (the situation did not disclose an armed conflict), genocide is a long shot (for a range of reasons). The Waki Commission that recommended ICC involvement suggested that crimes against humanity had been committed. However, WAKI's recommendation is problematic: the commission made no attempt to clarify what it meant by 'crimes against humanity' beyond stating that some of the attacks were 'systematic'. Its conclusion is therefor baffling. Its failure to delve into the issue invites the conclusion that its core recommendation - trial of suspects by a special local court or by the ICC - may be unfounded.

Yet until now, debate has proceeded as if crimes against humanity are a certainty. The ICC prosecutor office's suggestion that it 'will come in' should Kenyan authorities fail suggests as much. Ascertaining whether the evidence discloses an ICC crime is the OTP's next task or to the extent that Kenyan courts will be deployed, they must grapple with this issue. Until then, the call for ICC involvement in Kenya will remain empty and speculative...

Meanwhile, a new study shows that few Kenyans understand what the TJRC is about, or are skeptical about results. This does not bode well for an institution whose 'success' depends largely on legitimacy and engagement with the public...