Almost three weeks ago the East African Legislative Assembly passed a resolution calling for the trials of four prominent Kenyans charged with orchestrating post-election violence to be transferred from the International Criminal Court to the East African Court of Justice. In an article in this week’s The East African, Mary Wandia outlines some difficulties with this proposal, not the least of which is the fact that the EACJ jurisdiction is limited to interpreting and applying the East African Community Treaty.
Another difficulty with the proposal is the fact that the East African countries do not necessarily see themselves as bound by the decisions of the EACJ. Six years ago, the EACJ found that Kenya had failed to comply with the EAC Treaty in electing members for the East African Legislative Assembly. and Kenya was ordered to pay costs. According to Wandia, Kenya has failed to comply with the costs order. Wandia cites various other instances in which Kenya has allegedly misused the EACJ.
A further difficulty with the proposal is that it is hard to see what might have prompted the Kenyan government to put forward the proposal other than the fear that the ICC will hold the four prominent Kenyans who are currently on trial to account for the crimes which they are alleged to have committed. Perhaps it seems unfair that only a few are being charged when many were guilty; but if that is so, why have no efforts been made to investigate and charge others?