The Judiciary and the Director of Public Prosecutions have differed sharply over whether Kenya should set up a court to try international and organised trans-national crimes.
The clash between the two institutions came as the DPP, Mr Keriako Tobiko, dashed hopes of bringing to book the middle and low level perpetrators of the 2007/8 post-election violence when he said there was inadequate evidence to prosecute the suspects.
At a workshop in Naivasha, Chief Justice Willy Mutunga said Kenya was likely to adopt the Bosnian model by creating an International Crimes Division of the High Court.
The court, he said in a speech read by deputy Chief Justice Kalpana Rawal, would have powers to try both international and organised (or trans-national) crimes. The division would also try organised crimes like terrorism, piracy, and drug trafficking.
In later discussions, Mr Tobiko opposed a proposal to create a prosecution unit to be headed by an independent prosecutor who will not be answerable to him. He said the proposal was unconstitutional.
“The proposal is at best a misnomer and at worst constitutionally misleading,” he said.
Mr Tobiko said the office of the DPP enjoyed the same autonomy and independence as that enjoyed by the Judiciary.
“There is, therefore, no basis for the proposal to create a parallel prosecution office,” he said.
He noted that the International Crimes Division would be just another division of the High Court and cannot, therefore, have a prosecutor or its own investigative division.
“Investigations and prosecutions under the Constitution of Kenya do not and cannot lie with or under the High Court. The principle of separation of powers must be respected,” said Mr Tobiko. “There is no shortage of qualified prosecutors and if need be, we can even approve foreign advocates.”
He was of the opinion that there was neither reason nor need to replicate the International Crimes Tribunal or the ICC models. That opportunity was long lost when Parliament rejected the Special Tribunals Bill.
Participants later retreated behind closed doors in an attempt to resolve the differences that emerged after Mr Tobiko dismissed the Judiciary’s proposal for independent investigation and prosecution units.
Earlier, Mr Tobiko dealt another blow to the victims of the poll violence when he said that none of the 5,000 pending cases had sufficient evidence to sustain a prosecution.
Of all the files, which were reviewed by a multi-agency taskforce on the post-election violence that he appointed in June 2012, none had been found “prosecutable” either as ordinary crimes or otherwise.
“The sad and bitter truth is that at present, there are no cases arising from the 2007/2008 that can be prosecuted before the International Crime Divisions,” he said.
He said the cases were never investigated or charged under the International Criminal Act within the framework of the Rome Statute.
The investigated cases were prosecuted under the penal code or, in the case of sexual and gender based violence, under the Sexual Offences Act.