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Access to justice

Helping Kenyan prosecutors fight criminals in court

Around the world, Thomson Reuters engages in efforts to strengthen the rule of law and help democratic values flourish, even in places where progress in these areas can be dishearteningly slow.

Twenty years ago, in 1998, bombers detonated a truck packed with 2,000 pounds of TNT outside the U.S. Embassy in Nairobi, Kenya. Minutes later, a second truck bomb exploded near the U.S. Embassy in Dar es Salaam, Tanzania. The two bombings killed 224 people in all, including 12 Americans, and injured thousands, most of whom were Kenyans trapped in buildings near the Nairobi embassy that collapsed as a result of the first explosion.

Since then, ideologically motivated violence in various forms has been an inescapable part of everyday life for many Kenyans. Between 2008 and 2015, the Somali-based Al Queda affiliate Al Shabaab perpetrated 272 separate attacks in Kenya, and more than 600 people in Kenya have been killed since 2012.

Kenya is a frequent target for many reasons. Not only is Kenya allied with the U.S. and Israel in the international fight against violent extremism, many attacks are a form of retaliation against the establishment, in 2011, of an ongoing military presence in Somalia. Despite the frequent violence, however, Kenyan authorities have refused to allow insurgents to prevent them from building a strong democracy based on civic values and respect for the rule of law. Indeed, the fighting in Kenya isn’t just about politics and territory—it’s about fundamental principles of society.

New training for legal professionals

For the past ten years, Thomson Reuters has been helping Africa’s emerging democracies build the foundation for a civil society through its work with the non-profit groups Lawyers Without Borders and Books For Africa. The company provides Lawyers Without Borders (LWOB) with free printing services for its training materials, as well as resources and facilities to help LWOB create and distribute e-learning modules for educating African lawyers about the principles of effective jurisprudence. And in 2010, Thomson Reuters and Books For Africa joined forces to create the Jack Mason Law & Democracy Initiative, an ambitious program that provides up to 10 complete law libraries a year to African law schools, courts, bar associations, and other legal organizations.

Kenya is a particularly important country in this effort because it is one of Africa’s most advanced democracies, and because its relationship with the U.S. and Israel is so crucial to the global fight against militant extremism. One of Kenya’s biggest challenges, however, has been marshaling the resources necessary to effectively prosecute the perpetrators of deadly violence in its courts. Overwhelmed jurists, scant resources, corruption, and ongoing violence all combine to make it difficult for legal professionals in Kenya to do their jobs, so even if suspects are arrested, trying and convicting them can be difficult.

In an effort to help Kenyan lawyers and law-enforcement officials prosecute these challenging cases, Thomson Reuters Special Services (TRSS)—a division that works with governments around the world—was recently invited to work with Lawyers Without Borders to help train Kenyan legal professionals in the delicate art of investigating, assembling, and prosecuting successful cases against those who commit acts of violent social disruption within its borders. Twice in 2018, former TRSS general counsel Peter Vincent traveled to Kenya’s capital city, Nairobi, to conduct training sessions for the Kenyan School of Government under the auspices of an LWOB grant. The training is designed to teach Kenyan prosecutors how to teach themselves, says Vincent, and in the future will be woven into the school’s curriculum.

“A core of about thirty prosecutors has already been trained and certified,” says Vincent. “This core of certified counterterrorism trainers will make up the faculty at the Kenyan School of Government, where all new and less experienced prosecutors will receive similar training as part of their general prosecutorial education.”

The training itself focuses on procedures and processes that Kenyans can employ to mount successful cases despite such obstacles as a shortage of Somali and Arabic interpreters, insufficient administrative personnel, and entrenched pockets of corruption in local law enforcement. Better communication and cooperation between law enforcement and prosecutors is important to ensure chain of custody, for example. But the most challenging part of the training, says Vincent, is balancing the need for aggressive prosecution with the need to maintain respect for civil rights and the rule of law itself.

“The challenge Kenyan prosecutors face is identical to what counterterrorism prosecutors in the U.S. and Europe face,” says Vincent, “which is trying to find that delicate balance between zealous prosecution of suspects, while at the same time honoring basic civil and human rights in the process.”

Courts: The last battle ground

When a nation is being attacked, the temptation is to pass laws that give the government broader latitude to pursue and prosecute the attackers. After 9/11, for instance, the United States Congress passed the USA Patriot Act, giving authorities extremely broad powers of search, seizure, and surveillance, many of which have since been declared unconstitutional. In Kenya, too, the high courts have struck down a number of counterterrorism laws recently passed by the Kenyan parliament, arguing that they represent unnecessary overreach. For prosecutors, it can be frustrating when powerful instruments in their legal tool kit are removed—but, says Vincent, “they ultimately understand that part of their job is not just to convict, but to see that justice is done while at the same time protecting the civil rights of all individuals charged with terrorist acts.”

Unlike most U.S. attorneys, however, Kenyan prosecutors operate in an environment where they and their families are potential targets for retribution, and where potential witnesses—particularly in Al Shabaab “hot zones” along the Somali border—are reluctant to testify for fear that they and/or their loved ones may be kidnapped or killed. Almost every week, members of Al Shabaab cross over the Somali border into Kenya to attack villages with Kalishnikovs and bombs, says Vincent, and they often kidnap young boys to add to their growing army of young recruits. Prosecuting such cases is a perilous undertaking. Those who do often live in military garrisons for their own protection, and are escorted to and from court proceedings by paramilitary personnel, especially in the Northeastern provinces near the Somali border, or in remote areas where physical courtrooms do not exist.

Allen Mumia is one of Kenya’s top prosecutors, and was one of the first lawyers in Kenya to receive advanced counterterrorism training. He accepts the risks involved because, he says, “The courtroom is the last ‘battle ground’ against terrorism.” Merit-based convictions in a court of law are important to “instill confidence in the criminal justice system and reduce and/or eradicate the problem of suspicion and apathy against the state,” he says. By professionalizing prosecutorial conduct and upholding the rule of law, Mumia hopes the population at large will see the results and “embrace law enforcement as a friend, rather than an enemy.”

Now a certified legal trainer himself, Mumia says the specialized skills taught by Thomson Reuters give Kenyan prosecutors a much “broader perspective” about how to prosecute such crimes. By learning how other countries and jurisdictions are prosecuting similar crimes, Mumia says he has a much greater appreciation for the complexity of the undertaking (“there is no such thing as a perfect case,” he says), and for the importance of “adhering to international obligations” regarding the norms of a fair trial and equal justice under the law.

For Mumia, however, the most valuable aspect of the training has to do with techniques he learned for interviewing suspects and gaining actionable intelligence. “I have already applied the techniques I learned in two cases, with immense success insofar as obtaining favorable statements or admissions [of guilt] from the accused are concerned,” he says.

Fighting for the future

Despite the many challenges they face, Kenyan officials have indeed prosecuted and convicted many members of Al Shabaab, and with expert training they hope to increase their success rate in the future. Those in the justice system who participate in these trials are also aware that standing up to violent criminals in court sends an important symbolic message to Kenyan citizens that respect for the law is a value worth defending, and that the forces of government and democracy will not succumb to threats of violence from aspiring despots. It is especially important for young boys to see male role models in their society who are dedicated to the greater good, because the larger fight in Kenya and other African countries is for the soul of future generations. Close to fifty percent of Africa’s current population is under the age of eighteen. Soon, this cohort will constitute the majority of Africa’s workforce, so it is imperative to offer these children—through investments in education, healthcare, and social services—opportunities for economic growth that do not involve guns and gangs.

“Children in Kenya who have the misfortunate of living near the Somali border have very little hope of advancing in their society, and that makes for a tragically rich hunting ground for Al Shabaab,” Vincent observes.

To be sure, casting the legal system as “the enemy” is one of the methods militants use to radicalize people who feel disconnected from civil society. Vincent himself has worked on the ground battling drug cartels in Colombia and Afghanistan, and he believes these broader efforts to substitute decent-paying jobs and careers for life in a rogue militia are crucial to public support for democratic values.

“Too many men and women in Africa feel disenfranchised and marginalized,” Vincent says. “We need to give them something else to do, through better education and opportunities, so they don’t feel the need to join Al Shabaab or some other terrorist organization.”

Thomson Reuters efforts to help African authorities establish a solid foundation for improved lives and better economic opportunities are part of a multi-dimensional strategy to strengthen the rule of law around the world and help democratic values flourish, even in places where progress in these areas can be dishearteningly slow. Programs like Books For Africa are aimed at fighting high rates of illiteracy, the first step toward improved educational outcomes. The company’s work with Lawyers Without Borders and the Kenyan government supports continuing education for legal professionals, a crucial step in the fight to maintain public trust in the rule of law and the integrity of the courts. Taken together, these initiatives represent an important effort to combat the destructive effects of organized violence on all fronts, and to resist the seemingly indefatigable forces of lawlessness and tyranny.

By Tad Simons, Blogger, Legal Executive Institute

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