Pirate Trials, the International Criminal Court, and Mob Justice: Reflections on Postcolonial Sovereignty in Kenya

Over the past few years in Kenya, two stories have unfolded side by side that capture many of the puzzles of the postcolonial African state. Kenya has declined to establish a process to punish the political and business elites said to be behind the vicious outbreak of ethnic violence occasioned by a contested election in 2007. In response, the prosecutor of the International Criminal Court initiated proceedings against a handful of perpetrators for crimes against humanity. During roughly the same time period, starting in 2006, Kenya accepted delivery of and begun prosecuting Somali pirates captured by the naval forces of various wealthy states on the high seas, asserting its universal jurisdiction over them. For a moment, then, we have in Kenya both the oldest and one of newest objects of universal condemnation. Kenya seems able to import the original ‘enemy of all’ — the pirate — but seems set to export to the Hague, or have extracted from it, the new enemy of all, the new ‘pirate’ — the perpetrator of crimes against humanity. How do we understand the conjunction of these two forms of condemnation? Drawing on brief visits to Kenya in 2008, 2009 and 2010, including first-hand observation of the pirate trial proceedings underway in the port city of Mombasa, the Article contends that the abstract problem of the relation between universal jurisdiction and state sovereignty should be localized and theorized in a manner that accounts for the particular features of postcolonial states, their relations with more wealthy states, and their relation to their own citizenry.