Conclusion

Abstract

Between 2008 and 2013, there is little evidence that the OTP’s strategy of positive complementarity made any significant contribution to its stated objective of ending impunity. The OTP’s own interpretation of a ‘major success’ (‘the absence of trials before [the ICC] as a consequence of the regular functioning of national institutions’) was obviously not realised. Although the governments figures are incomplete and in some cases unreliable, it would seem that less than 3 % of reported post-election violence crimes resulted in conviction. These convictions were mainly for property and public order offences, with trials for serious crimes such as murders, sexual violence and offences against the person going almost entirely unpunished. Further, convictions were almost exclusively limited to lower-level perpetrators, with politicians, police officers, business persons and tribal elders escaping accountability for their role in organising, funding and inciting the post-election violence. The passage of time since the post-election violence means that the prospect of further convictions remains bleak. In February 2014 the Director of Public Prosecutions was forced to concede that there was insufficient evidence to sustain a prosecution at the domestic level for any of the 5,000 pending post-election violence cases.

When one looks beyond merely criminal prosecutions and adopts a broader understanding of ending impunity, again there is little cause for celebration for the OTP. Although the OTP’s strategy of positive complementarity coincided with the most sustained period of legal reforms in the country’s history, there is little or no evidence linking the two. Indeed, if anything, the ICC’s intervention in Kenya appears to have served as a distraction from, and obstacle to, the country’s much-needed rule of law reforms. Similarly, with respect to the culture of impunity in Kenya, the ICC’s involvement seems to have had little impact on restoring faith in the criminal justice system and has perhaps even contributed to the undermining of public confidence in state institutions.

Despite the apparent lack of success at ending impunity in Kenya, Bensouda’s OTP remains committed to the strategy of positive complementarity. Bensouda has described the strategy as ‘a proactive policy of cooperation and consultation, aimed at promoting national proceedings and at positioning itself as a sword of Damocles, ready to intervene in the event of unwillingness or inability by national authorities’. In its first policy paper published after Bensouda’s appointment as Prosecutor, the OTP affirmed its commitment to the strategy. Given this commitment, it is important that lessons be learned in applying the situation in future situations. It is too easy, and almost certainly incorrect, for Moreno-Ocampo to suggest that the OTP did all that it could in Kenya and that any failure in the implementation of its strategy was because of a lack of local leadership. So what lessons can the OTP learn from its Kenyan experience?