Domestic implementation of international criminal law
Republic of Kenya
Domestic Legislation | Commissions of Inquiry | Peace Accords | Resources and Links
Crimes Crime of Aggression
No specific provision. Furthermore, Kenya has submitted the declaration of non acceptance of jurisdiction of the International Criminal Court pertaining to the crime of aggression pursuant to paragragh 4 of article 15bis of the Rome Statute. See:
Declaration of non acceptance of jurisdiction of the International Criminal Court pertaining to the crime of aggression pursuant to paragragh 4 of article 15bis of the Rome Statute.
30 November 2015. [ENG]
Although the Penal Code of Kenya sanctions the preparation and execution of a war in Kenya under Part II, Chapter VII, Article 44, or the preparation of military expeditions "to proceed against the dominions of any friendly state" under Article 68, the wording of these articles do not contain a specific reference to the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or to the fact that the person involved must have a position effectively to exercise control over or to direct the political or military action of a State. [Full text of the Penal Code of Kenya available under the Resorces and Links section below].Crimes Against Humanity
➤ Crimes against humanity are defined in Part II (International Crimes and Offences against Administration of Justice), Article 6 (4) of the Kenyan International Crimes Act of 2008. See:
International Crimes Act, 2008. Act No. 16 of 2008 , 24 December 2008. [ENG]
➤ See also the Truth, Justice and Reconciliation Act, 2008, by which a Truth, Justice and Reconciliation Commission (TJRC) was established and empowered to carry out "an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired, between 12th December, 1963 and 28th February 2008", to investigate gross human rights, including crimes against humanity, and recommend "the prosecution of the perpetrators of gross human rights violations" (s. 5 (a) and (d) of the Truth, Justice and Reconciliation Act, 2008). The TJRC came into operation on 17 March 2009 and rendered its report on 21 May 2013.
Crimes against humanity are defined in Section 2 (1) of the Truth, Justice and Reconciliation Act, 2008.Genocide
➤ Genocide is defined in Part II (International Crimes and Offences against Administration of Justice), Article 6 (4) of the Kenyan International Crimes Act of 2008. See:
International Crimes Act, 2008. Act No. 16 of 2008 , 24 December 2008. [ENG]
➤ See also the Truth, Justice and Reconciliation Act, 2008, by which a Truth, Justice and Reconciliation Commission (TJRC) was established and empowered to carry out "an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired, between 12th December, 1963 and 28th February 2008", to investigate gross human rights and recommend "the prosecution of the perpetrators of gross human rights violations" (s. 5 (a) and (d) of the Truth, Justice and Reconciliation Act, 2008). The TJRC came into operation on 17 March 2009 and rendered its report on 21 May 2013.War Crimes
➤ War crimes are defined in Part II (International Crimes and Offences against Administration of Justice), Article 6 (4) of the Kenyan International Crimes Act of 2008. See:
International Crimes Act, 2008. Act No. 16 of 2008 , 24 December 2008. [ENG]
➤ War crimes consisting in grave breaches of the Geneva Conventions are included in ss. 2 and 3 of the Geneva Conventions Act of Kenya. See:
The Geneva Conventions Act. [Chapter 198]. Act No. 51 of 1968. (Assented: 19 November 1968 / Commencement: 22 November 1968). [ENG]
➤ Additionally, the Geneva Conventions Act (Colonial Territories) Order in Council, 1959 applies to grave breaches of the Geneva Conventions between 1959 and 1968:
The Geneva Conventions Act (Colonial Territories) Order in Council, 1959. UK Statutory Instruments, 1959, No. 1301, London.
[In force according to s.4 of The Bahamas Independence Order 1973 (No. 1080) on "Existing laws". In force 1959-1968.]
Related Documents:
The Prohibition of Anti-Personnel Mines Act, 2015. No. 21 of 2015. 08 October 2015. [ENG]
Notice about the establisment of the National Committee on the Implementation of International Humanitarian Law. Gazette Notice. No. 7608, The Kenya Gazette, Vol. CX - No. 69, Nairobi, 22 August 2008. [ENG]
The Kenya Red Cross Society Act, 1965. No. 29 of 1965. 24 November 1965. [ENG]
Jurisdiction ➤ The jurisdictional regime applicable to crimes against humanity, genocide and war crimes is provided for under ss. 6 & 8 of the International Crimes Act, 2008:
International Crimes Act, 2008. Act No. 16 of 2008 , 24 December 2008. [ENG]
➤ Regarding grave breaches of the Geneva Conventions, s. 3 of the Geneva Conventions Act 51 of 1968 provides a basis for extraterritorial jurisdiction by permitting prosecution of any person in Kenya, irrespective of nationality or the place where the breach was committed. See:
The Geneva Conventions Act. [Chapter 198]. Act No. 51 of 1968. (Assented: 19 November 1968 / Commencement: 22 November 1968). [ENG]
See also:
Information provided by Kenya on the scope and application of universal jurisdiction in accordance with General Assembly resolution 64/117.
The scope and application of the principle of universal jurisdiction (Agenda item 86), General Assembly of the United Nations, Sixth Committee (Legal), sixty-fifth session (4 October to 11 November 2010). [ENG]
[General Assembly resolution 64/117 (A/RES/64/117) of 15 January 2010, "[R]equests the Secretary-General to invite Member States to submit, before 30 April 2010, information and observations on the scope and application of the principle of universal jurisdiction, including information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and to prepare and submit to the General Assembly, at its sixty-fifth session, a report based on such information and observations." This document contains the reply provided by Kenya to the said request.]
Miscellaneous provisions applicable to crimes against humanity, genocide and war crimes:Acording to s. 7 of the International Crimes Act, 2008, the following provisions (applicable law and general principles of criminal law) contained in the Rome Statute of the International Criminal Court apply to crimes against humanity, genocide and war crimes under Kenyan jurisdiction: "7. (1) For the purposes of proceedings for an offence under section 6, the following provisions of the Rome Statute shall apply, with any necessary modifications--
(a) article 20 (which relates to crimes for which a person has previously been acquitted or convicted);
(2) For the purposes of any such proceedings--
(b) article 21 (which deals with the law applicable at proceedings at international level)
(c) paragraph 2 of article 22 (which relates to principles of interpretation to be applied to the definition of crimes);
(d) article 25 (which relates to principles of individual criminal responsibility);
(e) article 26 (which relates to the exclusion of jurisdiction over persons under eighteen years);
(f) article 28 (which relates to the responsibility of
(g) article 29 (which excludes any statute of limitations);
(h) article 30 (which relates to the mental element of crimes);
(i) article 31 (which specifies grounds for excluding criminal responsibility);
(j) article 32 (which relates to mistakes of fact or law);
(k) article 33 (which relates to superior orders and prescription of law).(a) the provisions of Kenyan law and the principles of criminal law applicable to the offence under Kenyan law shall apply; and
(4) [sic] For the purposes of subsection (1), the articles of the Rome Statute specified in that subsection (other than article 20) shall apply as if--
(b) a person charged with the offence may rely on any justification, excuse, or defence available under the laws of Kenya or under international law:
Provided that--(i) in the event of any inconsistency between the provisions specified in subsection (1) and the provisions and principles specified in paragraph (a) of this subsection, the provisions specified in subsection (1) shall prevail; and
(ii) the fact that an act done outside Kenya is not an offence under the law of the place where it was done shall not be held to be any justification, excuse, or defence.(a) a reference to the ICC were a reference to the Kenyan court exercising jurisdiction in respect of the proceedings; and
(5) [sic] For the purposes of interpreting and applying articles 6 to 8 of the Rome Statute in proceedings for an offence under section 6--
(b) a reference to the Rome Statute included a reference to this Act.(a) the Kenyan Court exercising jurisdiction in the proceedings shall have regard to any elements of crimes adopted or amended in accordance with article 9 of the Rome Statute; and
(b) provisions of the Penal Code, to the extent of any inconsistency with the application of paragraph (a), shall not apply."- Presidential immunity: According to Article 143 (4) of the 2010 Constitution: "[...] The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity." [Full text of the Constitution of Kenya available under the Resources and Links section below]
International Criminal Court
Rome Statute of the International Criminal Court: The Republic of Kenya signed the Rome Statute of the International Criminal Court on 11 August 1999 and deposited its instrument of ratification on 15 March 2005.
International Crimes (Procedures for Obtaining Evidence) Rules, 2010. Legal Notice No. 177 of 2010, 22 October 2010. [ENG]
International Crimes Act, 2008. Act No. 16 of 2008 , 24 December 2008. [ENG]
➤ Truth, Justice and Reconciliation Commission (TJRC):
"The Truth, Justice and Reconciliation Commission (TJRC or the Commission) was established in the wake of the tragic events of the 2007/2008 Post-Election Violence (PEV).
As part of the Kenya National Dialogue and Reconciliation (KNDR) process, an agreement for the establishment of a truth, justice and reconciliation commission (TJRC Agreement) was also adopted. Pursuant to the TJRC Agreement, the National Assembly enacted the Truth, Justice and Reconciliation Act (TJR Act) on 23 October 2008. The Act received Presidential Assent on 28 November 2008 and came into operation on 17 March 2009.
In terms of the TJR Act, the Commission was inaugurated on 3 August 2009.The broad mandate of the Commission was to inquire into gross violation of human rights and historical injustices that occurred in Kenya from 12 December 1963 when Kenya became independent to 28 February 2008 when the Coalition Agreement was signed." [Introduction by The Seattle University School of Law Digital Commons.]
The TJRC was initially given a two-year mandate, which was extended three times. Its final report was handed over to the president on 21 May 2013, three weeks after its operations had officially ended.
The Truth Justice and Reconciliation (Amendment) Act, 2013. Kenya Gazette Supplement No. 178 (Acts No. 44), 27 December 2013. [ENG]
[Through this amendment, the National Assembly gives itself powers to consider the report issued by the Truth, Justice and Reconciliation Commission and monitor the implementation of the recommendations it contains. The said report is available under the Resources and Links section below.]
The Truth, Justice and Reconciliation Act, 2008. Act No. 6 of 2008. 28 November 2008. [ENG]
Kenyan National Dialogue and Reconciliation: Truth, Justice and Reconciliation Commission.
04 March 2008. [ENG]
➤ Commission of Inquiry into Post-Election Violence (CIPEV) or Waki Commission:"The Commission of Inquiry into Post-Election Violence (CIPEV) was the outcome of the Kenya National Dialogue and Reconciliation Accord of February 28, 2008, negotiated by Kofi Annan and the Panel of Eminent African Personalities, and its sister agreement of March 4, 2008, known as Agenda Item 4, which called for the establishment of a number of bodies of inquiry to address justice and accountability and longer-term issues of governance and the rule of law. https://www.ictj.org/publication/kenyan-commission-inquiry-post-election-violence"
Commission of Inquiry into the Post Election Violence (CIPEV) in Kenya: Rules and Procedure.Gazette Notice No. 4923, The Kenya Gazette, Vol. CX - No. 46, Nairobi, 13 June 2008. [ENG]
Commission of Inquiry into the Post Election Violence (CIPEV): Rules and Procedure. Gazette Notice No. 2941, The Kenya Gazette, Vol. CX - No. 30, Nairobi, 11 April 2008. [ENG]
Commission of Inquiry into the Post-Election Violence following the December 2007 General Election: Citation. (23 May 2008).
Gazette Notice No. 4474, The Kenya Gazette, Vol. CX - No. 41, Nairobi, 23 May 2008. [ENG]
Commission of Inquiry into the Post-Election Violence following the December 2007 General Election: Appointment. (22 May 2008).
Gazette Notice No. 4473, The Kenya Gazette, Vol. CX - No. 41, Nairobi, 23 May 2008. [ENG]
Kenyan National Dialogue and Reconciliation: Commission of Inquiry on Post-Election Violence.
04 March 2008. [ENG]
➤ Other Commissions of Inquiry:
Commission of Inquiry into the Ethnic Violence in Tana River, Tana North and Tana Delta Districts: Extension of Time. (15 January 2013).
Gazette Notice No. 467, The Kenya Gazette, Vol. CXV - No. 6, Nairobi, 15 January 2013. [ENG]
Rules and Procedure of the Commission of Inquiry into the Ethnic Violence in Tana River, Tana North and Tana Delta Districts. (02 October 2012).
Gazette Notice No. 14347, The Kenya Gazette, Vol. CXIV - No. 95, Nairobi, 05 October 2012. [ENG]
Appointment of Commission of Inquiry into the Ethnic Violence in Tana River, Tana North and Tana Delta Districts. (21 September 2012).
Gazette Notice No. 13554, The Kenya Gazette, Vol. CXIV - No. 91, Nairobi, 21 September 2012. [ENG]
- Under Construction -
Kenyan National Dialogue and Reconciliation: Truth, Justice and Reconciliation Commission.
04 March 2008. [ENG]
Kenyan National Dialogue and Reconciliation: Commission of Inquiry on Post-Election Violence.
04 March 2008. [ENG]
The National Accord and Reconciliation Act 2008.
28 February 2008. [ENG]
Pact on Security, Stability and Development in the Great Lakes Region.
15 December 2006. [ENG]
Protocol of Non-aggression and Mutual Defence in the Great Lakes Region.
30 November 2006. [ENG]
The Constitution of Kenya, 2010.
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
The Constitution of Kenya, 2010.
World Intellectual Property Organization (WIPO). [ENG]. [Last accessed 06Mar18]. [External Link]
Penal Code. [Cap. 63]. (Updated).
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
Penal Code. [Cap. 63]. Revised Edition 2012 [2010].
Kenya Law via the World Intellectual Property Organization (WIPO). [ENG]. [Last accessed 06Mar18]. [External Link to pdf document]
Criminal Procedure Code of Kenya. [Cap. 75]
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
International Crimes Act, 2008. (Act. No. 16 of 2008).
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 13Mar18]. [External Link]
Commissions of Inquiry Act. [Cap. 102]. (Date of commencement: 12 June 1962 - Date of assent: 28 May 1962).
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 14Mar18]. [External Link]
Extradition (Commonwealth Countries) Act. [Cap. 77].
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
Extradition (Contiguous and Foreign Countries) Act. [Cap. 76].
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
African Union Non-Aggression and Common Defence Pact, 2005.
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
African Nuclear-Weapon-Free Zone Treaty (Pelindaba Treaty), 1995.
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
Kenya Law Reform Commission (KLRC). [ENG]. [Last accessed 06Mar18]. [External Link]
Laws of Kenya. (Legislation database).
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
Case Search. (Caselaw database).
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
The Kenya Gazette.
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 06Mar18]. [External Link]
Kenya.
United Nations Office for the Coordination of Humanitarian Affairs (OCHA). [ENG]. [Last accessed 14Mar18]. [External Link]
List of International Humanitarian Law Treaties to which Kenya is a State party.
International Committee of the Red Cross. [ENG] [Last accessed 06Mar18] [External Link]
Commissions of Inquiry Reports:
The Final Report of the Truth Justice and Reconciliation Commission of Kenya (2013).
The Seattle University School of Law Digital Commons. [ENG]. [Last accessed 13Mar18]. [External Link]
Report of the Commission of Inquiry into Post-Election Violence (CIPEV): Executive Summary.
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 14Mar18]. [External Link to pdf file]
Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya.
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 13Mar18]. [External Link to pdf file]
Commission Reports. (1924-2015).
National Council for Law Reporting (Kenya Law). [ENG]. [Last accessed 13Mar18]. [External Link to pdf file]ICC:
Situation in the Republic of Kenya. (ICC-01/09).
International Criminal Court (ICC). [ENG]. [Last accessed 14Mar18]. [External Link]
Kenyatta Case: The Prosecutor v. Uhuru Muigai Kenyatta. (Formerly The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. ICC-01/09-02/11).
International Criminal Court (ICC). [ENG]. [Last accessed 14Mar18]. [External Link]
[Charges withdrawn due to insufficient evidence]