Tag Archive | "Kenya"


Critical Analysis: Kenya’s Deputy President William Ruto to be Tried at the International Criminal Court, and the ICC to be tried by the Kenyans

William Ruto, Kenya’s Vice President appeared before the International Criminal Court (ICC) for the first time on September 10, 2013 for his trial.  Ruto is charged with crimes against humanity in response to the ethnic cleansing that occurred shortly after the 2007 presidential election.  During this cleansing, more than 1,000 people died and 600,000 people were homeless.  Along with Ruto, two other Kenyans are being tried for the same crimes: a radio journalist named Joshua Arap Sang and Kenyan President Uhuru Kenyatta, who during the 2007 election supported the opposing political party, former President Kibaki.


William Ruto, Kenya’s Vice President appears in the ICC for trial.

Ruto was the first of the three Kenyans to appear in court, and specifically faces charges of murder, persecution, and forcible transfer of people.  He is also charged as being a co-conspirator with Sang for orchestrating the murder and deportation of political supporters of the rival political party in the Rift Valley region.  He pleaded not guilty to all counts, and has assured his supporters that the case against him is fiction since the case is built upon a conspiracy of lies.   Despite Ruto’s calm and almost cavalier attitude about the case, Chief Prosecutor Fatou Bensouda opened by explaining that Ruto’s actions resulted in cold-blooded, deliberate murder and the relocation of thousands of people, decimating Kenya as well as the world’s perception that Kenya was a peaceful country.  Bensouda is expected to call forty witnesses to try her case.  Consequently, this case is far from decided.  It is estimated to last months, if not years.

Additionally, another type of trial is occurring during the prosecution of Ruto.  Ruto’s case has brought forth questions of whether the ICC is as unbiased and credible as it used to be.  The International Criminal Court is an independent court located in The Hague, Netherlands.  It is intended to be a court of last resort and only tries people for the most serious crimes, which include crimes against humanity, and it does not target specific jurisdictions.  Notwithstanding the ICC’s claims to unbiased, it had been claimed by African countries that the ICC focuses on African countries and avoiding war crimes in other hotspots.

The credibility and effectiveness of the ICC has also been called into question.  The ICC has a low success rate in cases where it is trying public officials for crimes against humanity, and Kenyan support for this case has dramatically diminished.  First, this case is unprecedented in that Ruto, and eventually Kenyatta are still acting public officials.   Ruto will be the first serving politician to be tried in the ICC.  Ruto was re-elected as Kenyatta’s Vice President in 2012, around the same time that the ICC announced that Ruto would face charges.  This continued support for Ruto was evident by the number of Ruto supporters packing the gallery.  This support has even gone so far as to the Kenya’s parliament that recently passed a vote to withdraw from the ICC, symbolizing the dissatisfaction that Kenya has with the ICC.  The other cases where the ICC has had successful convictions only involved previously ousted, unpopular leaders.  Consequently, the ICC is fighting the public opinion of Kenya in this case.

Although the public opinion of the case and the ICC does not have any influence on the actual trial or the evidence presented, the ICC will have an uphill battle in the coming months to convict Ruto of the alleged crimes against humanity given the unpopularity of the case.  Additionally, this case must also prove the unbiased nature and the competence of the ICC to the Kenyan country, the African continent, and the world.  In short, not only must the prosecutor prove her case, but the ICC must indicate through this trial that the ICC can effectively try an alleged and acting politician solely for his crimes against humanity to bring to justice the deaths of Kenyans, demonstrate that political leaders are not above justice, and to bring sustainable peace back to Kenya.

 Katelin Knox is a 3LE and Sutton Editor for the Denver Journal of International Law and Policy.

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After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Honorable Mr. Justice David K. Maraga
(Kenyan Law Reports)

The Court of Appeal decision overturns a ruling from the High Court of Mombasa that concluded, as noted by Roger on this blog, that “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Rather than summarizing the lower court’s opinion, I will simply direct readers to Roger’s excellent analysis of that case.

On appeal, Justice David Maraga stated that the High Court erred by, 1) “subordinating Section 69 of the Penal Code to Section 5”; 2) misinterpreting Sections 369 and 371 of the Merchant Shipping Act of 2009, and; 3) “fail[ing] to appreciate the applicability of the doctrine of universal jurisdiction.”

With regards to the first ground of error, the Court Appeals took issue with the High Court’s interpretation of Section 5 of the Penal Code and its relationship to Section 69. Section 5 states that “The jurisdiction of the courts of Kenya…extends to every place within Kenya, including territorial waters.” The High Court characterized Section 5 as the “defining” Kenyan jurisdictional provision and concluded that Section 69, criminalizing piracy on the high seas, was “void, ab inicio.

Justice Maraga differed with the High Court’s position and held that “there is no conflict or gradation between [Sections 5 and 69].” He noted that Section 5 is part of Chapter 3 of the penal code, entitled “Territorial Application of the Code,” while Section 69 is contained in Chapter 8, “Offences affecting Relations with Foreign States and External Tranquility.” In short, Section 5 concerns itself with the territorial jurisdiction of Kenyan Courts and Section 69 deals with extraterritorial offenses. If anything, concluded Justice Maraga:

“on the established principle of statutory interpretation that in event of inconsistency in statutory provisions the “later in time” prevails, it is Section 69 [passed in 1967] which should supersede Section 5 [passed in 1930] but there is no warrant for that as there is no conflict between the two sections.”

The second basis for overturning the High Court’s ruling arises out of the 2009 repeal of Section 69 of the Penal Code and its replacement with Section 369 of the Merchant Shipping Act. Below, the High Court suggested that repealing Section 69 took the crime of piracy jure gentium off the books. However, Section 369 Merchant Shipping Act, the article replacing Section 69, closely tracks UNCLOS article 101’s definition of piracy under international law. Accordingly, although the Merchant Shipping Act does not include the Latin phrase “jure gentium,” the crime of piracy under international law, according to the Court of Appeal, survived the statutory change.

MV Courier, the pirated ship at issue in Hashi

In the alternative, Justice Maraga pointed to Section 23(3) of the Interpretation and General Provisions Act, which states that in the case of a law being repealed mid-proceeding, that proceeding shall move forward “as if the repealing written law had not been made.” Because the act in question was allegedly committed on March 3, 2009 and Section 69 was not repealed until September 1, 2009, the above-mentioned interpretive provision would apply in this case.

The final issue under consideration was the broader question of whether Kenya was authorized under international law to try piracy cases where the act in question was committed outside Kenya’s territorial jurisdiction by perpetrators and against victims who are not Kenyan nationals.

Justice Maraga responded by noting that piracy was a crime of universal jurisdiction and recounting Kenya’s participation in and adoption of UNSCR 1918 in April, 2012. This resolution “Calls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected…pirates apprehended off the coast of Somalia…” Ultimately, Justice Maraga concluded that:

the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

This decision should be welcomed by the international community, especially those involved in the prosecution and detention of suspected pirates. Most immediately, Hashi allows for five separate piracy cases brought under Section 69 of the Kenyan Penal Code to move forward, clearing up a two-year backlog. More importantly, however, the Court of Appeal’s unequivocal acceptance of the principle of universal jurisdiction, its applicability to piracy jure gentium, and its incorporation in Kenyan municipal law ensures that Kenya can continue to play a central role in the regional prosecutions of piracy suspects.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

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Sources: BusinessWeek, NY Times, BBC, Washington Post

News Post: Tensions Rise Between Kenya and Somalia

On October 16th, Kenyan troops crossed into Somalia in an attempt to secure the border between the two countries.  Over the past month, Somali gunmen have kidnapped several Westerners, including two volunteers with Medecins Sans Frontieres, from northern Kenya.  Kenya alleges that the Somalis involved in the kidnappings are members of al-Shabaab, a militarist group with ties to al-Qaeda that has been fighting against the Transitional Federal Government in Somalia.

The Transitional Federal Government (TFG) has a tenuous grasp on Somalia, despite withdrawals from Mogadishu by al-Shabaab in August.  The group appears to be regrouping in southern Somalia, close to the Kenyan border where the TFG has less support from local clan-based militias.  The town of Afmadow is a major stronghold of al-Shabaab and is strategically important because of its proximity to Kismayo, a port city that provides revenue for the group.  Residents report that al-Shabaab fighters were leaving as the Kenyan troops approached.

Sources: BusinessWeek, NY Times, BBC, Washington Post

Sources: BusinessWeek, NY Times, BBC, Washington Post

Al-Shabaab denies any involvement in the recent kidnappings and has vowed to take action against Kenya for its actions.  On October 18th, a suicide car bomb killed six people in Mogadishu while the Kenya’s Defense and Foreign Ministers met with TFG officials.  No one has claimed responsibility for the terrorist attack, but al-Shabaab has vowed to resist the Kenyan forces.

Kenya has been training these clan-based militias to fight al-Shabaab recently, but by entering Somalia with hundreds of troops, Kenya appears to be increasing its involvement.  While Kenya has stated that its actions were caused by the recent kidnappings, military analysts have suggested that this highly complex operation has been planned for a while.  There have been conflicting reports as to whether the Somali government was aware of the Kenyan military plan in advance, but on October 18th, the Somali government and the Kenyan ministers signed a communiqué emphasizing al-Shabaab’s threat to both countries and stating that Kenya and Somalia would work closely to “defend the sovereignty and territorial integrity of both countries.”

Al-Shabaab claims that Kenya is using the kidnappings as an excuse for the military operation and denies all involvement; others point out that al-Shabaab does not typically organize attacks outside of Somalia.  However, Al-Shabaab was responsible for the July 2010 attacks in Uganda that killed 74 people watching a World Cup game in Kampala.  It is also worth noting that Kenya hopes that increasing tourists to three million a year by 2015 will help it “achieve its goal of a 10 percent economic growth.” Several of the recent kidnappings in Kenya took place at resorts, which may have a negative impact on the tourism industry.  Additionally, famine in Somalia has increased the number of refugees entering Kenya, increasing pressure on Kenyan resources and infrastructure.

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University of Denver Sturm College of Law