Magister Legum - LLM / The International Criminal Court (hereafter ‘ICC’ or ‘the Court’), in its fight against impunity is slated to put on trial, in conformity with Article 27 of the Rome Statute1, an incumbent Head of State and his Deputy for crimes under Article 7 of the Statute. The President and Deputy President of the Republic of Kenya are currently accused of crimes against humanity before the ICC, for acts of violence perpetrated in the wake of the December 2007 presidential and parliamentary elections. This research is a study of the ICC’s conceptual framework and positive implementation of its mandate with respect to prosecuting Kenya’s top leaders. By critically evaluating the cases against President Kenyatta and Deputy President Ruto, this research aims to assess the feasibility of such high-profile cases which have, in part, contributed to the hostility surrounding the Court in its fight against impunity. To this end, the factual and legal background, as well as the political context of the cases will be discussed.

The principle of complementarity is a tool used to punish the commission of core international crimes. A concerted approach is required to combat war crimes, genocide, crimes against humanity and aggression. The Prosecutor of the International Criminal Court needs to fully appreciate the express and implied discretionary powers of states to ensure all possible accountability mechanisms are explored. Failure by the Prosecutor to do so results in missed opportunities to capitalise on various options related to the proper application of complementarity. Therefore, there is a need for consultations to establish that the International Criminal Court and prosecutions can no longer exist without competing alternatives preferred by states. The current misunderstandings on the application of complementarity are rooted in unresolved state and prosecutorial discretions. The endangering of state discretion threatens the integrity and credibility of the International Criminal Court. The unaddressed question of state discretion is also at the centre of disputes between the African Union and the International Criminal Court. Grey areas in the application of complementarity are clearly visible through the inconsistency and diversity of the International Criminal Court decisions and frequent prosecutorial policy proclamations. As a result, prosecutorial discretion needs to be checked. Prosecutorial discretion is checked at the United Nations, International Criminal Court and state levels. The checks at regional level and by non-prosecutorial options need to be explored. The call is for the International Criminal Court not to neglect the legal-political environment which the Court operates in. The environment is essential in demarcating the exercise of discretions. The Kenyatta case is illustrative of the need to invent an interpretation that reflects the evolving theory to practice reality. The development or amendment of a prosecutorial policy is desirable to give guidance on the value, circumstances and priority accorded to justice. The policy should be comprehensive enough to accommodate mechanisms which advocate for strengthened state discretion. For instance, African Union instruments and treaties reveal that the respect of state discretion is one of the core principles of the African Union system. / Public, Constitutional, and International Law / LL.D.