Eacj and the Question of Referral of ICC Cases

Can the jurisdiction of the EACJ extend to criminal jurisdiction of serious violation of human rights?

30th April, 2012, Nairobi, Kenya

The recent calls by the East Africa Legislative Assembly (EALA) members through a resolution and by the campaign to refer the ICC cases against the four Kenyan suspects to the EACJ can’t pass without scrutiny both on its viability and also genuineness.

Africa has been one continent whose population has never known peace. It has been an innocent civilian slaughter house and yet, its leadership does not bother. It spent more resources and political investment protecting criminals responsible for mass atrocities. Preventing mass atrocities and genocide should be the core national security interest and moral responsibility of any political leader and country in Africa worth its salt.

AU, EALA, IGAD among other structures in Africa should be at the forefront identifying and vigorously prosecuting those behind mass atrocity threats, and also seek to strengthen the government’s ability to foresee, prevent and respond to these crimes. Unfortunately, they{leaders} are busy creating fertile grounds for more slaughtering of African people through providing safe heavens for both domestic and international criminals.

Kenya has the primary jurisdiction for investigating and prosecuting suspects when a crime has been committed. The ICC as it is well known is complementary to this jurisdiction and only took the cases when Kenya didn’t show any steps it had taken towards investigating and prosecuting the four. The question then arises whether Kenya can “forum shop” so to say when it has failed to exercise its primary jurisdiction.  On what basis does the government hope to convince the ICC to refer the cases to the EACJ? This campaign just like the failed shuttle diplomacy is bound to fail for a number of reasons.

First of all, there is no mechanism under the Rome Statute for referral of a case to a regional court. There is absolutely no reason why the ICC will cede jurisdiction to another complementary jurisdiction. Let it be known that even if the East African states were to go ahead and confer criminal jurisdiction on the EACJ, such jurisdiction will still be complementary to the national states’ jurisdiction.

Secondly, even if the EACJ was to assume jurisdiction and start proceedings against the four, an admissibility challenge under the Rome Statute before the ICC will not succeed. The language of the Statute is clear. It only talks of “the state” having jurisdiction on the case and has proceeded to investigate or prosecute. This simply means that Kenya cannot raise an admissibility challenge before the ICC on the basis that the EACJ has assumed jurisdiction. Simply put, Kenya cannot “forum shop” when it has failed to exercise jurisdiction on its own.

Thirdly, this campaign will face many logistical difficulties in trying to set up a criminal jurisdiction within the EACJ. The proponents of this campaign have been relying on the section that allows the possibility of extending the court’s jurisdiction. But what does the section say? It provides that the jurisdiction of the Court may be extended to appellate and human rights at a suitable date to be determined by the Council.

Jurisdiction on human rights in this case has been misunderstood by the campaigners to mean criminal jurisdiction for human rights violations. On the contrary, this jurisdiction just like that of the European Court and American Courts is enforcement of human rights within state parties. The court will be determining questions of human rights referred to it or a breach of a human rights treaty that would be in force within the region.

It is clear that yet again Kenya government is engaging in a counterproductive exercise instead of taking up jurisdiction and conducting prosecutions if it is in a position to. A failure means the cases will still remain at the ICC. There is no short cut for those cases that ICC has taken jurisdiction on.


Government of Kenya has done absolutely nothing to prosecute the middle and lower cadre of criminals responsible for direct PEV atrocities on the ground. This raises serious questions on the motivation behind desperate attempts by President Mwai Kibaki to thwart ICC prosecutions. 

Signed by

Ndung’u Wainaina

Executive Director