International Journal of Humanities and Social Science

ISSN 2220-8488 (Print), 2221-0989 (Online) 10.30845/ijhss

Examining Prosecutorial Discretion within the International Criminal Court (ICC) and Its Implications on Kenyan Cases
Mr. Meshack Korir Lomoywara

This article examines the prosecutorial discretion within the International Criminal Court (ICC) and its implications on Kenyan cases. In the year 2010 the Prosecutor of the International Criminal Court (ICC), Louis Moreno Ocampo, exercised the first ever proprio motu powers in the Republic of Kenya. Aware of the magnitude of impact of the violence the prosecutor decided to pursue only six suspects for crimes committed during the post-election violence that engulfed the country following the disputed presidential elections in 2007. In the past, the ICC has secured situations through self-referrals and Security Council referrals. However, as the Office of Prosecutor (OTP) continues in the execution of its mandate, there is a sharp dilemma on how the Prosecutor should apply the legal criteria established by the Rome Statute especially when assessing complementarity, gravity and interest of justice requirements before initiating investigations and prosecutions. Moreover, both legal and procedural difficulties have emerged in the Court’s first ever proprio motu trigger mechanism which has revealed a number of practical legal challenges in the OTP’s practice.

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