Is the urgency for an expanded EAC judiciary justified?

The principle of the chairman of the Summit of the East African Community, President Kibaki, persuading fellow heads of state to approve an extension of the power of the East African Court of Justice to include among others, the power to try those charged with crimes against humanity, is both right and logical when one bears in mind the facts that the stated goal of the member states is to establish an East African federal state, albeit gradually.

Article 5 of the Treaty which describes the different stages through which the partner states will go, makes it clear that formation of a political federation will come as the final stage.

When it is formed, the East African Federal state will have two tiers of courts. One tier will be of federal courts whilst the other will be of state courts similar to those in existence. Using the analogy of courts in a federal state such as USA, Canada, Germany, India and Australia, one can predict that the federal courts will probably be District Federal Courts, Federal Court of Appeal and the Federal Supreme Court.

Today the East African Court of Justice has two chambers- the trial chamber and the appellate chamber which hears appeals from the Trial chamber. Under Article 27 of the Treaty, the Court only has power to interpret the Treaty.

The Article states that the court shall initially have jurisdiction over the interpretation and application of the Treaty and it shall also 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, partner states shall conclude a protocol to operationalise the extended jurisdiction.

The Summit decided that the time has come to extend the powers or jurisdiction of the Court to include the trial of those charged with crimes against humanity. The extension will cover many other matters. For instance there is no reason why a Court like the former East African Court of Appeal serving the partner states should not be restored now.

Crimes against humanity

What is controversial is, however, whether when the expanded jurisdiction comes, the cases of Kenya's four ICC suspects (the so-called Ocampo 4) should be transferred to the East African Court of Justice.

The Kenya government is determined to ensure that the Ocampo 4 are tried in Kenya or in East Africa. That determination has led Kenya to apply to the United Nations Security and to the International Criminal Court for a decision that the trial takes place in Kenya.

Its applications were rejected. The perception in the world is that the Kenya government either does not believe that the ICC should try those charged with crimes against humanity – which it was established to try along with war crimes and crime of genocide – or that the Ocampo 4 specifically should be tried by that court.

This is an issue of concern to nations that believe that those who commit the offences of genocide, war crimes and crimes against humanity must be tried either by the countries they are nationals of or by other countries.

That belief led to the conviction of former Liberian President Charles Taylor, by the International Tribunal for Sierra Leone. The world wants to know where Kenya and East Africa stand with regard to the crimes tried by ICC. According to Article 5(3) of the Treaty which established the East African Community, its objectives include promotion of the universally accepted principles of good governance, democracy, the rule of law and the observance of human rights and social justice.

Denial of justice
Six matters arising for determination by the member states of the EAC are:

1. Do they share the view on humanity that crystallised after the defeat of Adolf Hitler in 1945, that certain conduct by an individual is so unacceptable that it is not simply a matter of jurisdiction but something of concern to all human beings wherever they are in the world and should be tried by the permanent International Criminal Court where the domestic court is either unwilling or unable to try them, and such conduct is embodied in the notions of crimes against humanity, genocide and war? As the Manual on International Courts and Tribunals observes, ICC exercises jurisdiction only when the national courts are unwilling or unable to genuinely carry out the investigation or prosecution of a person accused of crimes defined in the Rome Statute; though the primary duty to try suspects lies in the country in which the offences occur.

2. Will the East African Court of Justice become the national court for the purpose of the Rome Statute to qualify as the court to try the Ocampo 4?

3. For the East African Court of Justice to be recognised as a national court for the purposes of the Rome Statute what must the East African countries do?

4. Is Kenya willing to carry out the investigation and prosecution which to date have been undertaken by ICC?

5. Is the world to wait for the EAC to put its house in order so that the Ocampo 4 may be tried in Arusha?

6. If the answer to the first issue is that the East African countries share the view of the world as regards punishable conduct, the issue becomes whether the rule of law and human rights will be promoted by requiring ICC to transfer the cases of the Ocampo 4 to the East African Court of Justice or it should be left to ICC to handle cases already before it and let the East African Court of Justice utilise the newly created jurisdiction when the time comes.

My view is that the expansion of jurisdiction is welcome but the transfer of the cases of the Ocampo 4 to the EACJ will not promote the rule of law for three reasons. The first one is that the EAC appears to be questioning the principle upon which the ICC is founded. The second reason is that the EAC does not constitute a state with the primary duty to try crimes against humanity as envisaged by the Rome Statute. The third reason is that if the transfer were to be done, the transfer will offend the principle that the delay of justice is denial of justice.

Mr Kuria is a senior counsel in Kenya