Legal Aid for Effective Victim Legal Representation in Kenya’s Post-Election Violence: Lessons from the International Criminal Court




Atrocity victims, common legal representative for victims, compensation, human rights, positive complementarity, post-election violence, reparations


The International Criminal Court’s legal aid scheme pays court-appointed victims’ lawyers. Yet, whether ICC or domestic legal proceedings can provide better victim satisfaction goes beyond the question of whether external or internal legal representation is more effective in protecting victims’ rights. 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 argues that 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 victims’ plight in the Kenya cases with 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 constitutional-based 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.



Khamala, C.A., Crimes against Humanity in Kenya’ Post-2007 Conflicts: A Jurisprudential Interpretation (Wolf Legal Publishers 2018)

Book Chapters

Khamala, C., ‘Victims and Witnesses Protection in the Ruto and Sang case: Implication on Secondary Victimization’ in Francis Nyawo and Joseph Wasonga (eds.) International Criminal Justice since the Rome Statute (Law Africa 2019) 107-133.

Journal Articles

Juma, L. and Khamala, C., “A Dynamic Approach to Assess the International Criminal Court’s Performance in the Kenya cases” (2017) Lesotho Law Journal, Vol. 25 no. 2, 39-73.

Khamala, C.A. ‘External and Internal Common Legal Representation of Victims at the International Criminal Court: Beyond the “Kenyan Trial Approach”’ (2020) African Yearbook on International Humanitarian Law 159-191. DOI:

Pemberton, A., Letschert, R.M., de Brouwer, A-M. & Haverman, R.H. ‘Coherence in International Criminal Justice: A Victimological Perspective’ (2015) International Criminal Law Review, 15, 339-368. DOI:

Walleyn, Luc, ‘Victims’ Participation in ICC Proceedings: Challenges Ahead’ (2016) International Criminal Law Review, 16, 995-1017. DOI:

Wyngaert, C.V.D., ‘Victims before the International Criminal Court: Some Views and Concerns of an ICC Judge’ (2011) Case W. Res. Journal of International Law, 44, 475-496

Official Reports

Human Rights Watch, ‘ICC: Kenya Deputy President’s Case Ends’ ReliefWeb 5 April 2016 <>

‘The Trust Fund for Victims Launches New Assistance Projects in Northern Uganda’ 3 July 2015 <>

Office of Public Counsel for Victims, Representing Victims before the International Criminal Court: A Manual for Legal Representatives (International Criminal Court 2019)

Newspaper Articles

AFP, ‘Kenya charges police with crimes against humanity over 2017 violence’ France24, 28 October 2022 <>

Corder, M., ‘Kenyan Lawyer denies ICC Allegations of Witness Tampering’, ABC News, 6 November 2020 <>

K’Onyango, O., ‘DCI Boss Kinoti duped us, say Poll Violence Survivors’, Saturday Nation, 28 November, 2020 <>

Maliti, T., ‘Kenyan Court finds Government is Liable for Harm Suffered by Three Victims of Police Shootings’, 8 October, 2020 <>

Mutambo, A. ‘ICC terminates case against Kenyan Lawyer Paul Gicheru’, The East African, 14 October 2022 <>

Owenga, E., ‘DCI reopens Post Election Violence Cases as Victims Claim New Threats’ Citizen Digital, 23 November 2020 <>


Ogora, L.O., ‘Why Victims “Feel Abandoned” by the Ugandan Government’ International Justice Monitor, 30, May, 2017 <,those%20who%20survived%20with%20injuries.>

Short, K., ‘Court Delivers Justice for Several Survivors of Post-Election Sexual Violence in Kenya’ Reliefweb


Constitution of Kenya (The Government Printer 2010)

Criminal Procedure Code (Chapter 75 Laws of Kenya)

Government Proceedings Act (Chapter 40 Laws of Kenya)

Internally Displaced Persons and Affected Communities Act no. 56 of 2012

International Crimes Act No. 16 of 2008.

International Criminal Court, Rules of Procedure and Evidence (2000) U.N. Doc. PCNICC/2000/1/Add.1

Legal Aid Act No. 6 of 2016, Act No. 11 of 2017

National Police Service Act no. 11A of 2011

Regulations of the Court, Adopted by the judges of the Court on 26 May 2004, Fifth Plenary Session, The Hague, 17- 28 May 2004, Official documents of the International Criminal Court ICC-BD/01-01-04

Rome Statute of the of the International Criminal Court, text of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November1999, 8 May 2000, 17 January 2001 and 16, January 2002. The Statute entered into force on 1 July 2002

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November, 1985 - A/RES/40/34) was adopted by the UN General Assembly (‘Victim’s Declaration’ or ‘Victim’s Magna Carta’)

Victim and Witness Protection Act No. 17 of 2014, L.N. 43/2015


Adrian Gilbert Muteshi v William Samoei Ruto & 4 others [2013] eKLR

Citizens Against Violence (CAVI) & 14 others v Attorney General & 3 others [2020] eKLR (the Police Shootings case)

Coalition on Violence Against Women (COVAW) & 11 others v Attorney General & 5 others [2016] eKLR <>

Joseph Kibiwot Melly & 14 others v Ministry of Interior and Coordination of National Government & 5 others [2018] eKLR

Prosecutor v Dominic Ongwen, Decision on contested victims’ applications for participation, legal representation of victims and their procedural rights, Situation in Uganda, <> (Ongwen case)

Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Case No.: ICC-01/09-02/11; 23 January 2012, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Situation in the Republic of Kenya <> (Muthaura, Kenyatta and Ali Case)

Prosecutor v Germain Katanga & Matheiu Ngudjolo Chui, Case No. ICC01/04-01/04-474, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case (May 13, 2008). < /doc/doc486390.pdf> (Katanga case)

Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/04-01/07-3277, Situation in the Democratic Republic of the Congo, Trial Chamber II (23 April 2012) Decision on the Urgent Requests by the Legal Representative of Victims for Review of Registrar's Decision of 3 April 2012 regarding Legal Aid <> (Katanga and Chui case)

Prosecutor v Laurent Gbagbo Case No.: ICC-02/11-01/11 6 February 2012 Pre-Trial Chamber III Situation in the Republic of Cote d’Ivoire. Public document Decision on issues related to the victims’ application process (Gbagbo case)

Situation in the State of Palestine, No. ICC-01/18, Pre-Trial Chamber I Public Decision on Information and Outreach for the Victims of the Situation (13 July 2018). (Palestine situation)

The Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11-460 09 Situation in the Republic of Kenya, Decision on victims’ representation and participation October 2012, Trial Chamber V.

<> (Ruto and Sang case)

Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, No. ICC-01/09-01/11 OA 3 OA 4 Decision on the ‘Application of the Victims’ Representative pursuant to Article 83 of the Regulations’ situation in the Republic of Kenya (23 April 2012) <> (Ruto and Sang case)

Prosecutor v William Samoei Ruto and Joshua Arap Sang, No. ICC-01/09-01/11-479, Situation in the Republic of Kenya, Decision appointing a common legal representative of victims, Dissenting Opinion of Judge Eboe-Osuji, Trial Chamber V (23 November 2012). <> (Ruto and Sang case)

R v Stephen Kiprotich Leting and three others, Nakuru High Court HCCR 34/2008 (the Kiambaa Church Burning case).




How to Cite

Khamala, C. A. . (2022). Legal Aid for Effective Victim Legal Representation in Kenya’s Post-Election Violence: Lessons from the International Criminal Court. International Journal of Criminology and Sociology, 11, 159–171.