The East African Legislative Assembly passed a resolution on April 26 calling on the ICC to transfer the cases of Kenya’s “Ocampo Four” to the East African Court of Justice (EACJ). This triggered a decision of the EAC Summit of Heads of States, under the chairmanship of President Mwai Kibaki, two days later, to mandate the Council of Ministers to expedite the amendment of the EAC Treaty or the conclusion of the protocol to extend the jurisdiction of the EACJ to cover, among other things, crimes against humanity. The summit further directed the Council of Ministers to consider this matter by end of May 2012 and report to an extraordinary summit to be convened immediately thereafter. The EALA was sitting in the Kenyan capital, Nairobi, at a time when Kenya is holding the rotating chairmanship of the EAC.
This is not the first time that Kenya is misusing the EAC and the EACJ specifically. In 2006, in the Prof Peter Anyang’ Nyong’o & others vs. AG of Kenya & 5 Others, Reference No. 1 of 2006 suit that contended that the process of electing the nine persons deemed to be Kenya’s EALA members and the rules of Kenya National Assembly for EALA elections infringed the EAC Treaty, the EACJ ruled that that the National Assembly of Kenya did not undertake or carry out an election within the meaning of of the Treaty. It therefore directed that Kenya start the process afresh to comply with the EAC treaty.
Kenya was so miffed by the ruling that in a record two weeks’ time it had spearheaded an amendment to the EAC Treaty. To undermine the security of tenure of EACJ judges, Kenya proposed the removal of judges on the basis of ‘investigation by a tribunal or other relevant authority of a partner state with a view to his or her removal from an office. Kenya is yet to pay the complainants the cost of that suit as directed by the EACJ.
Moreover, Kenya introduced a clause to limit access to the EACJ by EAC residents by inclusion of a requirement that “any person resident in a partner state may refer a matter for determination by the Court provided that proceedings are instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.” This limitation has been the basis of rejection of many cases by the EACJ, even where the violations are continuous, thereby denying justice to all East African citizens.
This also raises the question: If Kenya sought to ensure that redress for Treaty violations must be sought within two months, what has changed in 2012 that it is now demanding retroactive prosecution of the Ocampo Four given that the EACJ has no jurisdiction over crimes against humanity?
The Treaty amendment process above was challenged in the case East Africa Law Society and 4 others v. Attorney General of Kenya and 3 others, in Reference No 1 of 2007. The EACJ ruled that “failure to carry out consultation outside the Summit, Council and the Secretariat was inconsistent with a principle of the Treaty and therefore constituted an infringement of the Treaty.” Five years later, Kenya is back at it, in spite of that ruling. What will compel Kenya to comply with EACJ rulings on crimes against humanity in future?
The misuse of the EACJ does not stop there. Whenever a matter is filed against it, Kenya’s Attorney General raises preliminary objections on the jurisdiction of the Court to entertain the matter.
Recently, the Independent Medico-Legal Unit (IMLU) filed a case against the Kenyan government at the EACJ seeking to hold it accountable for its failure to investigate and, if necessary, prosecute members of the Kenyan security forces responsible for extrajudicial killings, torture, and other human-rights violations committed in Mt. Elgon district during the 2006-2008 conflict between Kenyan security forces and the insurgent Sabaot Land Defence Force (SLDF).
In seeking dismissal, the Attorney General of Kenya relied on the EAC Treaty provision that limits the jurisdiction of the EACJ to interpreting and applying the Treaty and expressly restricts the EACJ from deciding cases related to human-rights until a draft Protocol — not yet completed — extends the Court’s jurisdiction.
It is clear that Kenya wants to have its cake and eat it too. On one hand, Kenya and the other partner states would like an EACJ with jurisdiction over international crimes; on the other, they do not want it to have explicit jurisdiction over human rights. This undermines regional integration.
The EACJ 2007 ruling on the process of amending the Treaty notwithstanding, Kenya is seemingly in support of a strong EACJ. The aim of amending the EAC Treaty this time is substantively to extend its jurisdiction to international crimes so that its elites can avoid accountability for crimes against humanity.
The EAC Treaty provides an elaborate process for Treaty amendments including consultations with the private sector and civil society. This has not happened with regard to the proposed amendments. Does this decision reflect the wishes of the peoples of East Africa in general or the people of Kenya in particular? When did EALA and the Summit consult the peoples in line with the EAC principle of a people-centred and market-driven co-operation? If Kenya is supportive of a strong EACJ, why has it failed to mobilise EAC partner states to support the extension of its jurisdiction to human rights? Debate on a Protocol to achieve this has stagnated since 2004.
Kenya and other EAC partner states cannot choose to pursue regional issues that advance the narrow interests of their elites only to backtrack when some procedures or agreements do not favour them.
Mary Wandia is the regional programme officer at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are her own and do not reflect the views of OSIEA.