Kenya's judiciary seeks experiences from ECCC

Posted Thu, 05/30/2013 - 16:07 by Mr. Thomas Stevenson

From 27-30 May, the Extraordinary Chambers in the Courts of Cambodia hosted ten delegates from the Kenyan Judicial Service Commission (JSC).  Honorable Reverend Dr Samuel Kobia, who led the delegation, explained the JSC’s raison d'être on Monday in a meeting attended by members of the local media. 

Until recently, Dr Kobia said, Kenya’s executive branch hand-picked all judges, from the chief justice down to the magistrates.  Since the Judicial Service Commission was established by constitutional amendment in 2010, however, the JSC has held power of appointment.  The Commission also manages a “judicial fund,” which relieves financial pressures on court personnel.  Kenya’s current Chief Justice, William Mutunga, has said these moves will bolster judicial independence.  In his remarks at the ECCC, Dr Kobia echoed this sentiment and praised Mr Mutunga as a man capable of delivering “rigorous transformation” of Kenya’s justice system.

To guard against bias, JSC members are drawn from diverse backgrounds.  The delegation visiting the ECCC includes magistrates, representatives of the court of the Kenyan Supreme Court, the Court of Appeals, the Law Society of Kenya, Kenya’s executive branch and a pair of non-lawyers, who represent the Kenyan public.

The ECCC as a Model Court
On 29 May, I asked Dr Kobia why he brought his delegation to visit the ECCC.  He told me the JSC had been tasked by Chief Justice Mutunga with establishing an international crimes division within the high courts of Kenya.  Once created, the division would exercise jurisdiction over international and transnational crimes such as drug trafficking, piracy and cybercrime.  Initially, the JSC contemplated a domestic court modeled on the International Criminal Court (ICC).  But, after two or three months [of research],” Dr Kobia said, “we realized our task was bigger than expected.”  Before reforming Kenya’s justice system, the JSC decided it would need to draw upon the experiences of similar courts.

Honorable Reverend Dr Samuel Kobia (second from the right). Photo: ECCC/Nhet Sok Heng

The JSC began by visiting African counterparts Uganda and Rwanda, both of which have international crimes divisions, as well as the ICC at the Hague.  But the Commission was not finished.  “Everyone was telling us to look at hybrid courts,” Dr Kobia explained.  The ECCC is a trailblazer in this regard, as it brings together elements of Cambodian civil law with internationally-applied common law.

Chief Justice Mutunga’s interest in an international crimes court is not purely academic.  The 2007 re-election of President Mwai Kibaki was marred by widespread post-election violence.  An estimated 1,300 people died, while another 600,000 were internally displaced.  Against this backdrop, then, Dr Kobia’s team was particularly interested to learn about the ECCC’s innovative approach to victim participation.  Specifically, the ECCC is the first tribunal to grant select Khmer Rouge victims “civil party” status, which entitles them to moral and collective reparations.  Among other things, civil parties stand to be identified individually in the court’s written judgment on the guilt of the accused.

While the ICC has already identified six Kenyans as “most responsible” for the 2007-8 violence, Dr Kobia continued, Kenya must also deal with the “rank and file” aggressors—those who actually perpetrated attacks.  In this regard, Dr Kobia pointed out that they may draw experiences from the ECCC’s Office of the Co-Investigating Judges (OCIJ) .  Over the past seven years, OCIJ personnel have conducted fact-finding missions in the field, interviewing scores of Cambodians and helping to lay bare the reality of decades-old atrocities on a massive scale.

On visiting S-21 and Choeung Ek:
As a complement to their meetings with ECCC staff, the JSC delegation toured the Choeung Ek killing fields and infamous Khmer Rouge detention facility S-21 on Tuesday, 28 March.  “Obviously,” Dr Kobia confided, “it was very depressing.  Some of us had read a lot about the Khmer Rouge, but when you actually visit the sites, it’s too much.  It’s chilling.”  He said a few members of his delegation were overwhelmed by the displays they encountered, such as detainees’ depictions of S-21 torture methods, and had to excuse themselves.

At the same time, Dr Kobia said, such memorials show that Cambodians are trying their best to come to terms with what happened and refusing to be “imprisoned by the past.”  The Khmer Rouge regime saw millions perish without peace and without dignity.  But remembering them, Dr Kobia believes, will grant their spirits some measure of peace.

It is easy, Dr Kobia concluded, to wonder “How could Cambodians have done this to their fellow humans?”  But, for him, Kenya’s  own gruesome conflict stands as proof that people are capable of anything under certain circumstances.  As such, Dr Kobia expressed a strong desire to establish solidarity with Cambodians.  Upon returning home, he said, he wants to impart not only a tale of Khmer Rouge crimes, but a present-day narrative of justice done and seen to be done.

The Kenyan delegation at the Toul Sleng Genocide Museum together with the two survivors Mr. Chum Mey and Mr. Bou Meng. Photo: ECCC/Nhet Sokheng