International Criminal Justice at Domestic Level in Kenya: Reality on the Ground

Abstract

The primary duty to prosecute international crimes is vested in states. This duty is effectively discharged where a domestic criminal justice system is empowered to prosecute such crimes. In this regard enactment of good laws that reflect international crimes as contained in international instruments is imperative. It is noted that, over the years Kenya had a rather sketchy legislative framework for the prosecution of international crimes. War crimes were the only international crimes that were prohibited through implementing legislation related to the Geneva Conventions. The Genocide Convention had not been implemented and crimes against humanity which have mainly developed under the body of customary international law without independent convention were also not prohibited in any domestic law. As such, crimes against humanity and the crime of genocide had no domestic law until the implementation of the Rome Statute of the International Criminal Court in 2008.  This article analyses legislative framework for the prosecution of international crimes in Kenya before and after the enactment of Rome Statute. This analysis of prosecution of international crimes before domestic courts in Kenya brings to the fore the ordinary crime approach in prosecuting international crimes.