THE DPP'S SPEECH ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMES DIVISION OF THE HIGH COURT OF KENYA

Opening Remarks

By: MR. KERIAKO TOBIKO CBS, SC

DIRECTOR OF PUBLIC PROSECUTIONS, KENYA.

AT

THE STAKEHOLDERS WORKSHOP ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMES DIVISION AT THE HIGH COURT OF KENYA HELD AT SAWELA LODGE

5TH FEBRUARY, 2014

OPENING REMARKS OF KERIAKO TOBIKO, CBS, S.C., THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE 2ND STAKEHOLDERS WORKSHOP ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMES DIVISION OF THE HIGH COURT OF KENYA HELD AT SAWELA LODGE, NAIVASHA, BETWEEN 4TH 7TH FEBRUARY, 2014Distinguished Guests; Participants,Ladies and gentlemen;

1. On behalf of the Office of the Director of Public Prosecutions, and on my own behalf, I am delighted to have been invited to participate in this meeting to discuss the proposed establishment of an International Crimes Division (The ICD) in the High Court of Kenya. Establishment of the ICD

2. Section 8 of the International Crimes Act, (No.16 of 2009), confers jurisdiction to try international crimes (i.e, Genocide; Crimes Against Humanity and War Crimes) on the High Court of Kenya. In my view therefore the issue is no longer whether or not there should be established an International Crimes Division (ICD) of the High Court.3. The ICD is merely administrative construct to facilitate the High Court in exercising its jurisdiction under the ICA. The Hon the Chief Justice can administratively create such a division; as he has already done in relation to other thematic areas: e.g. family division, criminal division, constitutional and judicial review division, etc. There is therefore no need for legislation to create the ICD. 4. The Office of Director of Public Prosecutions therefore fully supports the establishment of an ICD of the High of Kenya. The issues which should be discussed

5. In the event, this meeting should be focusing on the following issues/questions; (i) The design and architecture of the ICD; (ii) Whether there are presently any cases arising out of the 2007/08 PEV that are ripe for prosecution before the ICD?(iii) Who should prosecute cases before the ICD?

(iv) The proposed expanded jurisdiction of the ICD to include the so-called transnational crimes.6.I shall briefly address those issues/questions as hereunder:

(i)Design and Architecture of the ICD

7.The JSC Committee proposes an ICD with composite structure modelled on the ICC and on other International Criminal Tribunals. Such ICD, it is proposed, will be housed in a separate facility where departments (e.g. Investigations, Prosecutions, Witness Protection, Registry) which the ICD will work with will also be housed. 8.I hold the firm opinion that there is neither a reason nor a need to replicate the international criminal tribunals or the ICC models in the guise of an ICD. That opportunity was long lost when Parliament rejected the Special Tribunal Bill.

9.The ICD cannot be anything else than a trial division of the High Court. It cannot have an Office of the Prosecutor (OTP) or its own investigative arm/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.

10.I think that the High Court should have its own ICD; the ODPP should also have its own specialized ICD and the same for the Directorate of Criminal Investigations.

11.Indeed, I have already created within the ODPP a specialized Division to deal specifically with crimes arising under the ICA and other crimes of similar nature and character. The said division is staffed with well-trained staff and its capacity continues to be enhanced.

12.The staff of the Division have conducted a benchmarking study tour to Uganda with the assistance of the Institute for International Security Studies (ISS) and attended a training organized by the Wayamo Communications Foundation in Nuremberg, Germany. Next week, another training organized together with Wayamo is scheduled. It is notable that the two trainings organized by wayamo have also been or will be attended by CID officers.

(ii) Are there cases arising out of the 2007/08 that are ripe for trial before the ICD?

13.None of the cases arising of the 2007/08 PEV was ever investigated or charged under the ICA within the framework of the Rome Statute. Those cases were investigated and the ones charged were prosecuted as ordinary crimes under the Penal Code or, in the case of SGBV cases, under the Sexual Offences Act.14.Furthermore, I am informed that of the 4000+ investigation files reviewed by the Multi-Agency Task Force on PEV that I appointed in June, 2012, that none of those files has been found to be prosecutable whether as ordinary crimes or otherwise.

15.The sad and painful truth therefore is that at present there are no cases arising out of the 2007/08 PEV that can be prosecuted before the ICD.

(iii) Who shall Prosecute cases before the ICD?

16.There is a proposal for the establishment of an independent Prosecution Unit within the ICD headed by an Independent Prosecutor, who is not under or answerable to the DPP.

17.With respect, this proposal is at best a misnomer and at worst a Constitutional fallacy.

18.There is already established by Article 157 of our Constitution, the Office of the Director of Public Prosecutions (the ODPP), which enjoys the same constitutional autonomy and independence as that enjoyed by the Judiciary.

19.Constitutionally, the ODPP is not any less independent than the proposed ICD or indeed the Judiciary as a whole. There is therefore no basis for the proposal to create a parallel Prosecution Office for the ICD.20.What we should be concerned about are the Specialisation; Skill, Competencies and Capacity required of the Prosecutors appointed by the DPP to prosecute cases before the ICD.

21.As I have already mentioned earlier there is already established a Specialized International Crimes Division (ICD) within the ODPP.

22.Although members of the Division have received some specialized training on the subject, more would still be required in terms of capacity building and provision of adequate human and financial resources.

23.That said, should particular cases arise which, due to their nature or complexity, would require skills and expertise not available within the Division, I would be prepared to appoint a special Prosecutor or a team of Special Prosecutors (whether local or foreign) to prosecute such cases assisted of course, by Prosecution Counsel from that Division.(iv) Expanded Jurisdiction of the ICD24.It has been proposed that the jurisdiction of the ICD be expanded to cover the so-called transnational crimes such as:

Terrorism; Cybercrime; Maritime Piracy; Drug Trafficking; Money-Laundering; Human Trafficking; Trafficking in Counterfeit goods** Trafficking in Wildlife trophies**25.There is no doubt that these emergent forms of criminality due to their complex nature require specialized skill and expertise to detect, prevent, investigate and prosecute. These crimes undermine national economic development and are a serious threat to the public safety as well as National and International Security.26.However, in deciding whether these crimes should be tried by the High Court (ICD), the following pertinent issues MUST be taken into consideration;

i.The term transnational crime is a generic description of a whole range of criminal conduct and does not refer to a specific defined crime. Therefore any crime has the potential of falling within this generic description if it meets the dual criteria under the UN Convention of Transnational Organized Crimes: i.e. an element of organization and cross-border effect.

ii.The description of transnational organized crime being open-ended, it is unpredictable what new forms of such criminality may arise in future.

iii.The specific crimes now proposed to be tried by the ICD, have been (and continue to be) effectively prosecuted (by ODPPs Prosecutors) before and tried by the Subordinate Courts.

iv.A pool of expertise has been created at the Subordinate Courts level to deal with these crimes. Shouldnt we be focussing our attention on expanding the pool of expertise that we already have in these Courts instead of divesting them of their jurisdiction and transferring it to the ICD?

v.The Subordinate Courts are distributed across the country. What would be the implication on the speedy dispensation of justice if those crimes are transferred to the ICD which as is proposed would be composed of a panel of only seven judges? vi.The proposal would require amendments to be effected on a wide range of Penal, Procedural and Evidentiary Laws and Procedures hence the need for an indepth audit of all such laws and procedures.Vii.Whether the ICD should have an exclusive Jurisdiction or a concurrent Jurisdiction to try these crimes?

27.It is therefore clear to me that this aspect requires a more thorough and focussed consideration. Otherwise, as the ODPP, we have an open mind on this issue.

Conclusion

28.I wish to thank the judiciary for spearheading this noble initiative. Although we got involved in this initiative rather late, nonetheless, we are willing to participate fully in the remaining parts of the on-going consultative process.

29.I thank you ALL.KERIAKO TOBIKO, CBS, SCDIRECTOR OF PUBLIC PROSECUTIONS

5th February 20141