Why Paul Mackenzie Was Tried Under Kenyan Law and Not International Law

Why was Paul Mackenzie prosecuted under Kenya’s Penal Code despite the judge’s extensive discussion of international crimes, genocide, crimes against humanity and the Rome Statute during the Shakahola massacre trial? Following the conviction of Mackenzie and 30 other accused persons in connection with the murders of 191 children and one adult, questions emerged about why the court did not determine their criminal liability under the framework governing international crimes. In this episode of Court Helicopter Weekend Explainers, Lawyer Danstan Omari examines the distinction between domestic criminal law and international criminal law, explaining why the legal classification of an offence determines the applicable law. He also explores the significance of the International Crimes Act, which incorporates provisions of the Rome Statute into Kenyan law, and the circumstances under which conduct may qualify as a crime against humanity rather than an ordinary domestic offence. The discussion further examines the testimony of Dr Asala, who highlighted differences between Section 21 of the Penal Code, which provides for common intention, and Article 25 of the Rome Statute, which establishes different modes of individual criminal responsibility for international crimes. The court's position was that these provisions do not conflict because they operate within distinct legal frameworks, with the applicable law determined by the offences charged. Lawyer Omari explains why the prosecution under the Penal Code meant that the court had to apply Kenyan criminal law rather than import international criminal liability standards into the murder charges. The episode unpacks the legal reasoning behind the judge's discussion of international law, the role of the International Crimes Act, and the implications of the distinction for the accused persons and the eventual sentencing process in one of Kenya's most closely watched criminal trials.