Abstract:
The International Criminal Court’s legal aid scheme pays courtappointed
victims’ lawyers. Yet, whether external or internal legal
representation is more effective in protecting victims’ rights, is
problematic. In circumstances where guilt is difficult to prove, as in
the ICC’s Kenya cases, victims’ interests may be better satisfied by
pursuing compensation from local courts. This paper therefore asks
whether post-election violence victims’ interests may be satisfied by
legal aid to support domestic compensation claims. Although
numerous victims participated in the Kenya cases, non-confirmation
of charges against the former Police Commissioner, withdrawal of the
Muthaura and Kenyatta case, and declining to conduct reparation
hearings after vacating charges in the Ruto and Sang case,
culminated in widespread victim dissatisfaction. The paper contrasts
the fortunes of victims who participated at the ICC with those of the
CAVI Police Shooting case and COVAW Sexual and Gender Based
Violence case which effectively proved more satisfying for some
victims. The question is whether legal aid for victims’ representatives
before domestic courts may enhance the effectiveness of local
responses to atrocity crimes. Although the comparatively successful
recent domestic suits illustrate advantages of pursuing constitutionalbased
compensation claims, as opposed to punitive-contingent
reparations before the ICC, these test cases require upscaling.
Notwithstanding the ‘Kenyan Trial Approach’s’ significant impact on
ICC evolution, to vindicate victims’ rights, the Trust Fund for Victims
may consider donating to Kenya’s Victim Protection Fund so as to
supplement PEV victim compensation. Kenya’s Legal Aid Act
requires reforms to support indigent victims, particularly those
suffering abuse of power.
