For Kenya’s post-election violence victims, one more year of broken promises
By Neela Ghoshal
Posted Monday, December 12 2011 at 00:00
One year ago, on December 15, 2010, Kenyan President Mwai Kibaki announced, “The government is fully committed to the establishment of a local tribunal to deal with those behind the post-election violence, in accordance with stipulations of the new Constitution.”
It was not the first time the Kenyan government had made such a promise. In 2008, the Waki Commission called on the government to establish a special tribunal to prosecute thousands of serious crimes - including murder, rape, robbery, assault and arson - committed during the 2007-2008 post-election violence. President Kibaki and Prime Minister Raila Odinga signed an agreement in December 2008 to establish such a tribunal.
Nothing came of the agreement. A few attempts to legislate a special tribunal were quashed by MPs or the by Cabinet. When one MP, Gitobu Imanyara, put forward such a Bill in November 2009, only 18 parliamentarians even bothered to show up to debate it.
Fast-forward a year to Kibaki’s December 2010 commitment to establish a local tribunal. The announcement coincided with the naming of six high-profile suspects for whom the International Criminal Court Prosecutor was requesting summonses for crimes against humanity. It was followed by a series of legal and political acrobatics to attempt to prevent or postpone prosecutions at the ICC.
These included the preparation of a massive report by the Department of Public Prosecutions, submitted to the ICC in March as part of Kenya’s “admissibility challenge,” which claimed Kenyan courts had already handed down 94 convictions for post-election violence in Kenya, including 49 for sexual and gender-based violence.
From February to November of 2011, Human Rights Watch conducted research into the question of national prosecutions for post-election violence. We interviewed 172 people, including 75 victims and dozens of police officers, judicial officials, and lawyers familiar with the cases, and we analysed 76 court files, most of them from the Department of Public Prosecutions list.
Our research, published in our new report, Turning Pebbles : Evading Accountability for Post-Election Violence in Kenya, released on December 9, found that while some perpetrators were convicted of petty crimes, most perpetrators of serious crimes - and virtually all of the persons suspected of organising the post-election violence - continue to benefit from impunity.
As a Kalenjin elder in Eldoret explained when I asked whether Kenyan politicians have the will to ensure prosecutions for post-election violence, “We are very good at saying we don’t leave a single stone unturned, but we don’t turn a single stone. Maybe we turn pebbles… Small stones are turned. The big ones, no one dares.”
Only two cases have resulted in murder convictions, in Nakuru and in Kericho. We identified three convictions for robbery with violence, one for assault, and one for grievous harm. But the government’s list of 49 sexual violence convictions was a joke. Most cases on the list had nothing to do with the post-election violence. Two involved men were accused of “unlawful carnal knowledge of a sheep.”
No police were convicted in spite of the Waki report’s tally of 405 fatal police shootings. At least 21 victims of police shootings filed civil cases and won in court - but the government has failed to pay court-ordered compensation.
That leaves victims like Peter Omari Ogenche wondering where he can turn for help. Ogenche, a father of four who was shot in the back by police, is now a paraplegic with a bullet lodged in his spine. He took his case to court, won five million in compensation, but has not yet received one shilling. When I visited Ogenche in Kibera, he told me he was often unable to afford even basic pain medication.
Dozens of cases were withdrawn by the Attorney General’s office with no explanation. In one such case in Barina, where James Kigen was killed with pangas during violence between Kalenjins and Kisiis, Kigen’s brother tried to pursue justice. He told me, “I went [to court] to testify about the post-mortem… The rest of the hearings I didn’t hear about, and then… I was astonished to see the accused walking around. I never got an explanation.”
In other cases, acquittals were due to poor investigations. A gang-rape victim in Nandi Hills was able to point out one of her attackers to police. But the judge acquitted him because police never organised an identification parade. Other cases ended in acquittals because police prosecutors lost the case file or failed to produce any witnesses in court.
Many victims have placed their hopes in the ICC, as “the first institution [Kenyan politicians] have come across that they cannot bribe, kill, or intimidate,” in the words of one Kenyan activist. But the ICC has only brought charges against six suspects. Absent a broadening of accountability through prosecutions in Kenya, hundreds of other perpetrators of serious crimes continue to enjoy impunity.
The lack of capacity and political will in the Kenyan police and judicial system demonstrates the enduring need for a special judicial mechanism. Even if political will were mustered, haphazard prosecutions on a jurisdiction-to-jurisdiction basis, in Kenya’s 17 High Court stations and sub-registries and its 105 magistrates’ courts, based on investigations by 85 police divisions throughout the country, are unlikely to yield knowledge about the organisation of crimes. A centralised system for processing post-election violence cases is required.
The special mechanisms that Human Rights Watch proposes - including a dedicated bench or division within the High Court, a special prosecutor, and units dedicated to criminal investigations and witness protection - should feature carefully vetted and recruited Kenyan and international personnel.
A special unit should investigate crimes by security force members, including police suspected of shootings and rapes, as well military personnel suspected of crimes in Mt Elgon that are linked to the election violence.
Providing redress for post-election violence victims is a requirement, not an option. Four years after the violence, victims have been waiting far too long for justice.
Neela Ghoshal is a Human Rights Watch researcher based in Nairobi.
Thanks, citiesburning, for reminding us it's Human Rights Day. I'm actually writing a research paper (due on Tuesday, crud) about how victim populations of crimes against humanity/war crimes/genocide feel about the ICC. Any thoughts?
Also...mods...I'm sorry, I know I JUST requested a tag, but no "crimes against humanity" or "ICC" or "international justice" tags?
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