Queries over demand for special high court division

The media reported last week that there had emerged differences between the Director of Public Prosecutions and the Judiciary over the establishment of a special division of the High Court, to hear cases arising from the post-election violence, and also cases referred to as transnational crimes.

“Transnational crimes” are offences committed in, or which have an effect on, more than one country, often committed by people working across national boundaries. These include terrorism, piracy, drug trafficking and human trafficking.

The possibility of setting up a court to hear cases against PEV suspects has commanded priority attention from the Judicial Service Commission which issued a paper last year, describing how such a court would work.

The court would be set up administratively by the Chief Justice and, if established, it would become one among various divisions that the Chief Justice has already created.

A detail that has offended the DPP is the proposal for special prosecutors for the division, who would act independently of his office.

The DPP has pointed out that, by constitutional arrangements, the power to prosecute criminal cases belongs to his office, and to set up a rival prosecution mechanism would contravene these arrangements.

Other than the objections by the DPP, other concerns surround the proposed division.

The most basic problem is that there is no independent demand for such a court.

The DPP, who would bring cases before such a court, has indicated that there is no evidence to sustain the prosecution of the thousands of PEV cases which his office has been investigating.

The setting up of the court is unlikely to lead to a sudden discovery of the missing evidence.

Of what use would the court then be?

The second problem is one of agency.

Even if a special arrangement for the prosecution of these crimes was needed, the judiciary is the wrong organ to lead in the determination of questions as to whether or not such a court is needed.

Between them, the police and the DPP are responsible for apprehending criminals and ensuring that these are prosecuted. If they have problems with the suitability of the trial arrangements, they can approach the Judiciary, or Parliament, for concurrence to change those arrangements.

APPREHENDING CRIMINALS

At the moment, drug trafficking cases and other transnational crimes, which the proposed division would hear, are tried in ordinary courts.

There is no recorded complaint that the police, or the DPP, have a problem with these courts.

Why then would the Judiciary, without being moved by anybody, and despite express objections by one of these organs, set up special courts for which nobody has asked?

At another level, unseen political minefields surround the proposals for a special division.

In the context of the cases before the International Criminal Court, the government has strived to create the image that there exists domestic capacity to try these cases.

The purpose of such an impression is to support the application, already rejected by the ICC, that the cases should be referred back to the country for trial.

For example, for a press conference addressed by the Chief Justice last year, the media had been given a misleading invite that claimed that the purpose of the meeting was to launch the division.

The Chief Justice was unaware of this information, even though only he could have launched the division.

The various resolutions by the African Union, that the Kenyan cases before the ICC should be handed back to the country, are based on the argument that the country’s judiciary has the capacity to hear these cases, and that the forum for hearing the cases is the international crimes division of the High Court.

While the Judiciary has repeatedly asserted that the international crimes division has nothing to do with the cases before the ICC, it has no control over the claims, including false ones, which the government is able to make about the existence and purposes of the division.

At the Assembly of State Parties at The Hague in December, a senior official claimed that the division had already been established.

It took none other than the Reverend Samuel Kobia of the JSC, who was in the same meeting, to correct the misleading claim.

The Judiciary proposes to establish a division of the High Court to try PEV crimes at a time when Parliament has passed motions to repeal the International Crimes Act and to pull the country out of the Rome Statute.

There is no political appetite for the prosecution of these cases.

The conflation of trial arrangements for transnational crimes with the PEV cases is viewed as hedging for the possibility that no PEV cases may be presented before the division.

In such a case, the inclusion of transnational crimes is a red herring, to cover for the possibility that no PEV cases may be forthcoming.

The experiences of Uganda, which the Kenyan Judiciary has studied, are informative.

In 2008, Uganda set up a special division of its High Court to try cases arising from the conflict involving the Lord’s Resistance Army.

Only one case has ever been presented during the five years of its existence, and this failed on a technicality.

A decision was made to activate a transnational crimes portion in their mandate, to save the judges from idleness.

However, this did not increase their workload. At their annual conference in 2012, the Ugandan judges resolved that the division be dissolved.

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