STATEMENT BY THE EAST AFRICA LAW SOCIETY ON EALA’S RESOLUTION SEEKING THE TRANSFER OF THE CASES OF THE 4 ACCUSED KENYANS FACING TRIAL AT THE ICC, IN RESPECT OF THE AFTERMATH OF THE 2007 KENYAN ELECTIONS TO THE EACJ:
A REJOINDER BY EALA – May 2, 2012
The East African Legislative Assembly (EALA) takes note of the statement on the above subject dated April 30, 2012, authored and signed by Dr. Wilbert B. Kapinga, President of the East Africa Law Society - on behalf of the legal fraternity, for which the Assembly among other stakeholders, is in receipt.
In a section of the Statement, EALS avers that the Summit, EALA and the Council of Ministers should refrain from pursuit of transfer of cases from the ICC to the EACJ unless and until such time when the Court is fully seized of the envisaged jurisdiction, capacity and competence to adjudicate international criminal cases as certified by the ICC.
The statement further asserts that Partner States should revisit the restrictive two months limitation clause for audience before the EACJ under Article 30(2) of the Treaty whose sum effect combined with effecting the above Resolution would be to perpetuate impunity for those alleged to be complicit in committing international crimes. This is in view of the extensive and comprehensive investigations required, as EALS states, prior to institution of human rights violation cases.
While we thank the EALS and various stakeholders for taking to it to react, positively or otherwise to the recent Resolution by EALA at the just ended 4th Meeting of the 5th Session of the 2nd Assembly, EALA wishes to refer EALS and all other interested stakeholders who are of the same view with regards to the matter at hand to carefully study the Resolution it passed.
The Resolution is succinct with regards to modalities concerning how and when the case involving the four accused persons should be transferred to the EACJ. The decision is very much informed by the need to see justice dispensed and speedily so while taking into consideration the very context of the environment in which the region currently operates in. The Resolution inter alia advocates for the transfer of the cases pending the extension of jurisdiction by the EAC of the EACJ by amendment to Section 27 of the Treaty for the Establishment of the East African Community.
EALA’s position is also clear that the ambit of jurisdiction of the EACJ should be retrospective in its very nature. EALA has also put it patently that there needs to be punitive measures taken for those found to have contravened the provisions of the Treaty or committed crimes in this particular case.
The EALA position is further informed by the fact that that the indictment of the four by the ICC may alone not and will not resolve the underlying issues that led to the said violence that grasped the entire nation of Kenya.
EALA is however surprised by a statement attributed to the EALS that the EACJ among other things does not enjoy a transparent, participatory and competitive process of appointment of judges. It is objectionable that the legal fraternity should be the ones to insinuate and make such remarks, knowing all too well that the Judges of the EACJ are by virtue of serving in their respective Partner States already qualified.
It is defeatist for the legal fraternity to be seen to allude to the fact that the EAC is bent on stripping the Court of its human rights jurisdiction. In EALA’s view, all stakeholders as required by the Treaty have the onus to advocate for and be heard in matters that relate to how the integration process is to be strengthened. The extension of the jurisdiction of the EACJ is one such component. The flaws aside, all the attempts to speedily amend that section of the Treaty should instead be encouraged.
It is heartening that at the 10th Extra-Ordinary Summit of Heads of States of the EAC on April 28, 2012, the Summit not only welcomed the resolution of EALA but that it directed the Council of Ministers to look into the matter of expediting the jurisdiction to cover among others, crimes against humanity by end of May 2012. The Summit is expected to convene an extra-ordinary Summit immediately thereafter to look at the matter
For avoidance of doubt, we implore EALS and other stakeholders to once again read the entire Resolution which we hereby attach in order to make more informed decision(s).
Lastly, the on-going public discourse on the admissibility of the case at the EACJ is healthy and positively contributes to the process of strengthening the region from the realm of peace, social justice and economic development.
'The East African Legislative Assembly (EALA) takes note of the statement on the above subject dated April 30, 2012, authored and signed by Dr. Wilbert B. Kapinga, President of the East Africa Law Society - on behalf of the legal fraternity, for which the Assembly among other stakeholders, is in receipt.'
