University of Dar es Salaam School of Law

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Browsing University of Dar es Salaam School of Law by Author "Materu, Sosteness F."

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    Alternatives and Adjuncts to Domestic Prosecutions
    (TMC Asser Press, 2015) Materu, Sosteness F.
    When a country decides to address past human rights violations committed on its territory, it has two options to pursue, namely retributive justice (prosecution) and restorative justice (non-prosecution) mechanisms. However, within the context of so-called “peace versus justice debate”, it is settled that whenever both mechanisms are pursued in a given transition, it is important to ensure that both peace and justice are achieved. This chapter focuses mainly on the Kenyan truth commission as one of the restorative justice mechanisms pursued as an integral part of the agreed domestic road map for accountability for the atrocities linked to the post-election violence. The chapter concentrates only on the aspects of the truth commission that have a bearing on criminal accountability for the crimes against humanity allegedly committed during the violence. It reveals that in view of the structure of the commission’s legal framework, there are both strong and grey areas with the potential of affecting criminal accountability positively or negatively.
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    Background to the Post-Election Violence
    (Springer, 2015) Materu, Sosteness F.
    Literature indicates that the violence accompanying the 2007 general elections in Kenya was a spill-over effect of the country’s previous history, hence the need to scrutinize the historical antecedents to these elections. This chapter identifies and analyzes five factors, namely negative ethnicity, dictatorship, political alliances, criminal gangs and impunity, which, prior to the 2007 elections, had characterized the Kenyan politics. The chapter reveals that in view of the five factors, feelings had developed in Kenya, already before the 2007 elections, that certain ethnic communities had been deliberately marginalized since independence, while others had been highly privileged or favoured in different ways. This gave rise, inter alia, to a number of historical fears and grievances, mostly in relation to land. It is shown that this state of affairs became a recipe for election violence accompanying all the multiparty elections prior to 2007, and since the grievances were not addressed, and in view of the previous trend of election violence, it indeed became certain that even the 2007 general elections would not be free from violence.
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    Criminal Accountability at Domestic Level
    (TMC Asser Press, 2015) Materu, Sosteness F.
    A state wishing to punish the core crimes under international law in its domestic courts can choose to follow two approaches. The first is to prosecute those crimes by relying on its ordinary domestic criminal law. The second approach is to prosecute them by relying on the structure of international criminal law as it is or as modified. The effectiveness of the first approach depends largely on how broadly or narrowly the domestic criminal law is structured, whereas that of the second approach depends, inter alia, on the practice followed in that state as regards domestication of international law norms so as to make them enforceable in the domestic courts. This chapter examines the two approaches in relation to the crimes against humanity allegedly committed in Kenya during the post-election violence, and evaluates whether Kenya has or could have utilized any of the approaches to effectively prosecute and punish the main perpetrators of these crimes. This discussion will provide a model for other jurisdictions, especially in the developing countries, that wish to address impunity for the core crimes in their domestic courts.
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    The Kenya Situation Before the ICC
    (TMC Asser Press, 2015) Materu, Sosteness F.
    As part of the road map for criminal accountability for the post-election violence in Kenya, parties which were involved in the violence agreed categorically that the ICC’s intervention would be invoked if the agreed domestic judicial mechanisms failed. This agreement would appear to be evidence of a strong determination to break the “culture of impunity” which had become entrenched in Kenya as far as gross violations of human rights are concerned. However, when the domestic mechanisms actually failed and the ICC intervened, both legal and political “battles” ensued. This chapter addresses the legal issues relating to or arising from the Kenya situation before the ICC, covering four main areas. Firstly, it clarifies and examines the trigger mechanism employed; jurisdictional issues and the scope of the charges and ICC investigations. Secondly, it identifies and analyses contentious legal issues arising in relation to the definition of crimes against humanity and the principle of complementarity. Thirdly, it evaluates Kenya’s legal responses as well as political and diplomatic strategies and reactions to the ICC’s intervention. Fourthly, it examines the future of the ICC process in Kenya in light of Kenya’s 2013 presidential election results and other specific developments at domestic level.
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    The Post-Election Violence and Immediate Aftermath
    (TMC Asser Press, 2014) Materu, Sosteness F.
    In the aftermath of the 2007 general elections in Kenya, widespread violence erupted. Subsequent inquiries by various commissions concluded that serious human rights violations, some of which amounting to crimes against humanity, had been committed, and that Kenya was duty-bound to investigate, prosecute and punish those responsible. This chapter describes the various aspects of the violence, and analyses the findings and recommendations of such inquiries, the main focus being the nature of the ensuing crimes and the agreed road map for domestic criminal accountability. It shows that the attempts to create a special tribunal for Kenya, which was at the core of the aforementioned road map, failed, and that such a failure resulted mainly from the lack of a political will at the domestic level. Most of the political elite favoured impunity, thereby frustrating the initiatives to implement the road map. However, the perception of the Kenyan civil society organizations and ordinary citizens remained that the crimes must not go unpunished, and that to achieve this, the masterminds of the violence, mostly politicians, must be prosecuted by an externally controlled judicial process, preferably the ICC.
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    The Post-election Violence in Kenya: Domestic and International Legal Responses
    (Springer, 2014-12-04) Materu, Sosteness F.
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    The Prosecution of International Crimes in Respect of the Democratic Republic of the Congo: Critical Evaluation of the Factual Background and Specific Legal Considerations
    (2010) Materu, Sosteness F.
    Since 1996 approximately 5.4 million citizens of the Democratic Republic of the Congo (DRC) have lost their lives as a result of the humanitarian crisis currently going on. Various warring ethnic groups have been committing terrible crimes against international law. War crimes and crimes against humanity such as rape, murder, recruitment of child soldiers and indiscriminate attacks on the civilian population have caused unspeakable suffering to civilians, especially in the eastern part of the country. Domestic institutions, the judiciary and the prosecution department, have not been able to address impunity because of being either in a state of total collapse or too weak to confront the strong warlords. As a result, when the International Criminal Court (ICC) became operational on 1 July 2002, the DRC authorities revived their desire to address the atrocities. Consequently, the crimes were referred to the ICC in 2004 and three DRC citizens are now undergoing trials at the ICC in two cases. The first part of this study evaluates the historical events that led to the referral of the DRC situation to the ICC. This includes the background of the conflict and the extent to which international crimes have been committed. Both regional and domestic attempts and initiatives to address the conflict are discussed, with specific reference to peace agreements and restorative justice mechanisms. The second part of the study deals with the prosecution of the perpetrators by the ICC. It examines the approach of the PreTrial Chamber to two legal issues, the principle of complementarity and modes of criminal participation as part of the ICC Statute. In this regard, the study makes a critical evaluation of two preliminary decisions confirming the charges against Lubanga, Katanga and Chui before the cases proceeded to the trial stage.
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    A Strained Relationship: Reflections on the African Union’s Stand Towards the International Criminal Court from the Kenyan Experience
    (TMC Asser Press, 2014) Materu, Sosteness F.
    This chapter comments on the current stand of the African Union towards the International Criminal Court, and on the AU’s position regarding the prosecution of incumbent African Heads of state before the Court. It analyzes how the African political elite, ordinary citizens and victims of crimes under international law view the International Criminal Court. In both cases Kenya is the main point of reference, because it has been in the center of the most recent critical positions taken by the African Union. Ultimately, it is shown that the current views of the AU Assembly about the International Criminal Court are not necessarily the views of Africans in general, and that the Court remains a relevant institution for Africa today as it was when it was established.