Introduction

Aims of the Principles

The ‘Nairobi Principles of Accountability’ (the ‘Nairobi Principles’ or simply the ‘Principles’) is the outcome of a research project undertaken in the period 2017-18 in collaboration between civil society experts and academics in Kenya and Ulster University’s Transitional Justice Institute, together referred to as the ‘Expert Group’.
Drawing on Kenya’s experiences with accountability for serious crimes committed in the context of the 2007-2008 post-election violence (PEV), the Principles aim to set standards and create guidance for future accountability processes addressing international crimes. The Principles focus on international criminal justice, specifically the International Criminal Court (ICC) process, given that this became the primary focus of actors seeking to advance accountability in Kenya, as efforts to promote accountability domestically encountered serious obstacles from the outset despite efforts made by civil society and other stakeholders.

Despite broad normative commitment, evidence suggests that national authorities are often reluctant to endorse accountability norms when crimes are committed within their jurisdictions or by their own nationals, in particular to the extent that accountability processes put State officials under scrutiny. Justice mechanisms addressing international crimes offer promises for advancing accountability norms, but the experiences from Kenya point to significant challenges in giving effect to these norms in practice.

By making recommendations for specific measures of reform, and legal, policy or practice change, the Nairobi Principles are relevant to multiple stakeholders, including various organs of the ICC, international and regional organisations, national justice sector bodies and other governmental agencies involved in justice processes, human rights lawyers and civil society actors working to advance accountability, academics and others. It is envisaged that the Principles and the associated material will be used as an advocacy tool and as a reference framework for legal and policy change, both domestically and internationally.

The Nairobi Principles do not purport to offer a ‘one-size-fits-all’ solution to accountability processes. Rather the objective is to draw on the challenges experienced in Kenya as a starting point for identifying more general challenges relating to achieving justice for serious crimes under international law and create principles which can benefit the evolving accountability system more generally.

In summary, drawing on the experiences from Kenya, the Nairobi Principles are intended to inform relevant stakeholders on how to address the challenges faced by the contemporary justice system for international crimes with a view to making it more efficient and legitimate.

Working methods of the Expert Group

The Nairobi Principles were developed on the basis of the collective and individual experiences of members of the Expert Group with seeking accountability for PEV crimes in Kenya as well as a thorough review of relevant legal sources and other official documentation, as set out in the justifications section and the resource centre. The Principles are framed so as to strengthen the prospects of accountability through a faithful and robust application of international law, and makes suggestions for legal, policy or practice change where the Expert Group identifies gaps or challenges with existing rules, standards or practice.

The Nairobi Principles are based on close collaboration between academics and civil society experts. The Principles are drafted by an ‘Expert Group’, composed of 19 academics and civil society activists with significant research and/ or practical experience relating to the processes of seeking accountability for international crimes in Kenya.

The first meeting of the Expert Group was held in Naivasha, Kenya, from 6 to 7 April 2017. The meeting created the foundation for the development of the Principles, including framing key issues to be addressed by the project, identifying the type of stakeholders to be consulted and discussing means of achieving policy impact. Subsequent meetings in Nairobi advanced the work of the group. These Principles are the ultimate outcome of this process. It was agreed at the outset that no member of the Expert Group is entitled to enter a personal dissent or reservation. Accordingly, the Principles reflect the consensus opinion of the Expert Group.

As a draft version of the Principles was prepared, the Expert Group sought feedback and input from various other stakeholders, including academics, the Government of Kenya, ICC officials and others, in an effort to ensure that the Principles are responsive to the views and needs of multiple actors. Whereas constructive feedback was given, in particular from academics working on accountability issues, and is reflected in the final version of the Nairobi Principles, not all stakeholders substantively engaged the process. The Expert Group is particularly grateful to the following individuals for their comments on earlier drafts of the Principles: Louise Mallinder (Queen’s University, Belfast); Luke Moffett (Queen’s University, Belfast); Susanne Mueller (Boston University). The final product remains the responsibility of the Expert Group alone.
Moreover, the Expert Group has identified and analysed relevant resources to develop a broader resource centre involving a database with academic publications, NGO and expert reports, policy statements and other material covering the justice processes relating to the PEV.

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