REPORT FINAL REPORT COMPLEMENTARITY IN PRACTICE Capacity Building for the Establishment of the International and Organised Crimes Division (IOCD) of the Kenyan High Court CONTACT WAYAMO FOUNDATION Prinzregentenstr.82 | 10717 Berlin | Germany [email protected] | www.wayamo.com Project completed with the financial support of theGerman Federal Foreign Office COMPLEMENTARITY IN PRACTICE COMPLEMENTARITY IN PRACTICE COMPLEMENTARITY IN PRACTICE: CAPACITY BUILDING FOR THE ESTABLISHMENT OF THE INTERNATIONAL AND ORGANISED CRIMES DIVISION (IOCD) OF THE KENYAN HIGH COURT December 2015 | Berlin, Germany Author: Bettina Ambach, Wayamo Foundation Wayamo Director Bettina Ambach and Kenya‘s Chief Justice Willy Mutunga. COLLABORATION WITH the Committee of the Judicial to establish the International Crimes JUDICIARY AND Service Commission on the Division (ICD) in the near future (the PLANNING PROCESS: establishment of an International name was subsequently changed Crimes Division in The High Court to the „International and Organised In May 2012, the Judicial Service of Kenya published the first Crimes Division,“ IOCD). It was clear Commission (JSC) of the Kenyan detailed report, which became that capacity-building measures Judiciary began to deliberate on the basis for all further discussion had to be organised for the relevant the possibility of operationalising on the establishment of the new actors, and legal discussions and the 2008 International Crimes Act. division. possible amendments had to As a consequence, a committee be initiated before the actual was set up to look into modalities of At a joint Wayamo & Institute establishment of the new division. establishing an international crimes for Peace and War Reporting division in the High Court. conference in November 2012, It is envisaged that the IOCD will Kenya‘s Chief Justice Dr. Willy have jurisdiction over international Six months later, in October 2012, Mutunga announced the intention crimes as defined by the Rome [email protected] | www.wayamo.com 2 COMPLEMENTARITY IN PRACTICE Statute and the International Crimes International Crimes Act (ICA) to prosecution at the IOCD? Act, including war crimes, crimes post-election violence. against humanity and genocide, as 7. IOCD rules and procedures. well as over transnational crimes, 4. Which laws need to be changed In November 2014, an Inter- such as organised crime, wildlife in order to prosecute transnational agency Committee was created. crime, piracy, terrorism, cyber crime, crimes in addition to those crimes This constituted a broader planning human trafficking, money-laundering prosecuted under the ICA, with the mechanism with representatives and counterfeiting. transition of the ICD into the IOCD? from the judiciary, the Office of The first step taken by the Judiciary was the creation of a strategic Planning Committee in May 2013 „Congratulations on pulling together a remarkable sym- for the establishment of the ICD. posium in April 2015. My colleagues at the Judicial Service This strategic committee held six Commission were full of praise for you. Commissioner meetings between May 2013 and Florence Mwangangi said that you have carved yourself a May 2014. niche in the IOCD. The Chief Justice was also very pleased The following main legal questions with the outcome. Bravo!“ were discussed, with Wayamo providing legal opinions and papers – Rev. Sam Kobia, Chair of the IOCD-Committee on the issues raised: May 2015 1. How to guarantee the independence of the special prosecutor, the investigators and the judges? 5. What should be the „sifting Director of Public Prosecutions mechanism“ for determining when (DPP), the Kenya Police Criminal 2. Should the IOCD be a tribunal cases go to the first level, the Investigation Department (CID) and created by parliamentary statute or Magistrates‘ Courts, or directly to the others. a division created by administrative IOCD in the High Court? powers of the Chief Justice? 6. What evidentiary standards are 3. The retroactivity of Kenya‘s 2008 required with the different stages of Wayamo Director in discussion with IOCD stakeholders in February 2013. [email protected] | www.wayamo.com 3 COMPLEMENTARITY IN PRACTICE COMPLEMENTARITY IN PRACTICE Wayamo symposium with all International and Organised Crimes Division stake-holders in April 2015 in Nairobi. ACTIVITIES & ACHIEVEMENTS tribunal similar to those established and repealing the International Crimes WITH THE TWO MAIN elsewhere (for example, the Act, which would have removed the STAKEHOLDERS: Special Court for Sierra Leone). The most important tool for the domestic THE CID AND DPP* independence of the court organs prosecution of international crimes, from the existing investigation, was not helpful. Fortunately, this did prosecution and judiciary branches not occur. CHALLENGES would have been guaranteed more easily. 5. With time, the prospects of the 1. Holding initial training events 2007/2008 PEV being investigated with all three key stakeholders The idea of a special tribunal was and prosecuted by the IOCD in attendance at the same then amended in favour of a special diminished. As a result, Wayamo time (judges, prosecutors and division of the High Court of Kenya. and the majority of participants at investigators) was not possible. a stakeholders meeting in February The judiciary underwent a reform 3. How to create a self-contained 2014 insisted on at least having process to determine the nomination and fully-staffed IOCD that was IOCD jurisdiction cover post-election policy for training sessions which physically separate from but which violence crimes in general. also affected the decisions on who would report to the DPP and CID. would attend training courses held How to create a liaison mechanism 6. By and large, civil society decided by Wayamo. among the different ‚arms‘ of the to abandon the IOCD process IOCD. because their members‘ priority 2. In the wake of the post-election was to deal with the PEV. They violence (PEV) of 2007/2008, the 4. The debate in Kenya about were discouraged by the remote initial idea was to create a special withdrawing from the Rome Statute probability of this ever occurring. It * Kindly see the appendix entitled, „Summary of IOCD activities.“ [email protected] | www.wayamo.com 4 COMPLEMENTARITY IN PRACTICE ICTY Chief Prosecutor Serge Brammertz and Justice Isaac Lenaola at Feb. 2015 workshop on investigating/ prosecuting Crimes Against Humanity. remains to be seen whether they will A group of investigators were informed the Foreign Minister that rejoin the process once the necessity trained on the spot in Mombasa. he hoped the capacity-building of dealing with transnational project would continue. organised crime will become more October 2014 obvious. A colloquium on international and The Foreign Minister acknowledged transnational crimes was held in the work that Wayamo had done in Pretoria, South Africa. The meetings strengthening the Kenyan judicial MILESTONES dealt with the pitfalls for national system to deal with international investigation and prosecution and transnational crimes. May 2014 authorities who were in the process On 2 May 2014, CID Director of establishing international crime February 2015 Ndegwa Muhoro announced the divisions. Special attention was paid Working meetings were held with creation of an international crimes to the case of Kenya. the Director of Public Prosecutions unit within the CID. Keriako Tobiko and the Director Remarkable support was received of Criminal Investigations Ndegwa August 2014 from the German Embassy in Muhoro to discuss the already On opening a Wayamo event on Pretoria, which organised a high- existing international crimes unit investigator training, CID Director level reception with the Chief Justice in the DPP and the crime unit in Ndegwa Muhoro personally of South Africa and the Kenyan its founding stages at the CID. It announced that the investigators Ambassador. was discussed how these two units whom he had sent to investigate a could be incorporated into the current case as an offence under February 2015 overall structure of the IOCD once the International Crimes Act, had The German Foreign Minister, Mr. it was launched by the Inter-Agency been handpicked from those who Frank-Walter Steinmeier, visited Committee. had attended Wayamo training Kenya. The Chief Justice of Kenya, courses. in conversation with the Foreign April 2015 Minister, again confirmed the A two-day, high-level symposium August/September 2014 good work done by Wayamo and at Riara University in Nairobi was [email protected] | www.wayamo.com 5 COMPLEMENTARITY IN PRACTICE COMPLEMENTARITY IN PRACTICE Wayamo at an IOCD outreach event in Nairobi‘s Kibera slum in February 2014. held with support from all the IOCD IMPACT their comprehension of the workings stake-holders, namely, the Chief and potential application of the Justice, DPP, CID Director, Attorney 1. Capacity-building measures International Crimes Act in Kenya. General, the German Ambassador, and training and the IOCD Planning Committee Through its consistent capacity- 2. Creation of joint investigation Chair. building measures, and high- teams level training courses in particular, During the various training sessions, Wayamo has become a driving it became increasingly clear that force in the IOCD establishment effective international investigations process. Approximately 150 call for close collaboration between investigators and prosecutors investigators and prosecutors. have been trained at Wayamo workshops, which have brought Networks of investigators