In Summary

  • If witnesses have had to be spirited into hiding across the world, just how would they come back to give evidence?
  • Our police are completely incapable of handling investigations that involve Big Men

One of the principles of international criminal law is that justice is better served closer to the victims. This principle has its roots in domestic criminal law that cases ought to be tried as close to the scene of crime as possible.

Thus, a crime committed in Kisumu is best tried in Kisumu not only to give solace and closure for the victims of the crime but also for practical purposes such as costs to witnesses, being near the scene of the crime, etc.

Of course in dictatorships, when the state wants to harass and inconvenience defendants, it can move the trial to a location far away. The Moi regime used this approach some, especially when the calls for multi-partyism were growing and many (falsely) accused persons found themselves arrested in Nairobi and then charged in their ancestral homes.

The poster child of this strategy was Pius Nyamora the publisher of the now defunct Society magazine who was charged in Mombasa, granted bail and then had to fly back and forth every two weeks for the mentions of the case which never took off.

The financial pressures eventually led to the collapse of Society and Pius moved to the USA.

This principle has been imported into soft international criminal law and comes up when accountability for international crimes such as genocide, war crimes and crimes against humanity arises. But it needs a caveat.

Yes, when there has been regime change and the alleged perpetrators do not control the levers of power, the principle makes sense. It is a sort of victors’ justice. But when the accountability is happening in spite of the regime, not because of it, we need a rethink.

Take the genocide in Rwanda. It would have been futile to try genocide cases in Rwanda had Juvenal Habyrimana still been in power--whether or not he himself had participated—as the perpetrators were closely allied to him. And the same applies for former Yugoslavia with Slobodan Milosevic.

Genocide, war crimes and crimes against humanity have links to the politics and power struggles in society. Every genocide in the world—accepted or alleged—has had political imperatives.

This is true for the Herero genocide in Namibia, the Holocaust against the Jews, the Rwandan genocide, the Cambodian genocide, and the genocide in Darfur in Sudan.

It is the same with war crimes in former Yugoslavia, northern Uganda, eastern DRC, and Central African Republic: There is always politics around them.

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