Kenya is opposed to a regional court hearing crimes against humanity cases despite President Uhuru Kenyatta and Deputy President William Ruto having to travel to the Netherlands to answer charges in the International Criminal Court over the 2007/8 post-election violence in the country.

The five East African Community partner states, through their Attorneys-General, agreed that the East African Court of Justice should work with the African Union on matters of human rights and crimes against humanity.

But at the recent EAC Sectoral Council’s meeting in Arusha, Kenya and Tanzania were opposed to the proposal of extending the jurisdiction of the EACJ to cover, among other things, crimes against humanity and human rights. They argued that four EAC partner states — Kenya, Tanzania, Uganda and Burundi — were contracting parties to the Rome Statute.

Since the African Court of Human and People’s Rights can prospectively handle international crimes cases, they said, the ICC principle of complementarity will be diverted from the national to the regional trial. They described the establishment of criminal mandate within the EACJ as a complicated matter with financial and budgetary implications.

Burundi was also opposed to the proposal, saying crimes against humanity are covered by universal jurisdiction as provided for under the Rome Statute. It said that universal jurisdiction cannot be extended to the EACJ as that would infringe on Article 23 of the EAC Treaty.

The EAC article stipulates that the First Instance Division of the EACJ has only the mandate to hear a case, administer justice and apply the relevant laws.

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In this case, when one first introduces a claim before the EACJ, the First Instance Division will decide, after hearing and studying the case, whether or not there is a legitimate reason to bring the claim or complaint before the Court. It does so only in accordance with the Treaty but this does not apply in the case of crimes against humanity.

“EAC partner states have other commitments under the Rome Statute and the African Union Initiative on the protection and promotion of human rights and therefore the pursuit of these commitments should prevail,” said Burundi on its position on the matter.

“Extension of the jurisdiction of crimes against humanity for the EACJ has financial and structural constrains.”

Rwanda, which is not party to the Rome Statute, was however of the view that the EACJ’s jurisdiction may be extended to cover crimes against humanity as long as such extension is within the protocol to operationalise the extended jurisdiction of the regional court.

The EACJ’s mandate is limited to resolution of disputes between EAC member states. The extension was proposed by the Council of Ministers for approval by the EAC Heads of State in Kampala in November.

To do so, partner states are required to amend Article 27 (2) of the Treaty to grant the Court jurisdiction over crimes against humanity trials covering both state and individual responsibility.

Article 27 of the Treaty states: “The Court shall have such other original, appellate, human-rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the partner states shall conclude a protocol to operationalise the extended jurisdiction.”

The category of crimes against humanity has many dimensions — including rape, sexual slavery and torture — but the court focuses on those most responsible for mass atrocities, especially high-level political officials who abetted but did not perpetrate the crimes.

But political analysts say that, even with this limited mandate, the court is struggling. The infrastructure for prosecuting mass atrocities does not exist with few experienced prosecutors and investigators to draw on, they argue.