Sunday, February 5, 2012

Leaders doubt State intention to reopen poll violence cases



By Lillian Aluanga

Reports that the Government wants to reopen local case files related to the 2007/8 post-election violence are raising doubts about commitment to restorative justice.
This comes after last week’s ICC ruling that committed to trial four suspected masterminds of the post-election violence.
Those who will be key in driving the new bid by Government will be drawn from the State Law Office, Justice Ministry, Police, the Criminal Investigations Department (CID) and Witness Protection Agency.
Already, Attorney General Githu Muigai has asked Chief Justice Willy Mutunga to open a new wing of the High Court to handle international crimes.
Director of Public Prosecution Keriako Tobiko and AG Prof Githu Muigai. [Photo: File/Standard]
This will incorporate most post-election violence cases, including charges against Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Head of Civil Service Francis Muthaura and radio journalist Joshua Sang.
The four suspects are to stand trial for crimes against humanity that include murder, persecution, forcible transfer of populations and rape. They have appealed the ruling the ICC ruling to commit them to trial.
But even as the Government launches its bid to reopen the cases, questions are being raised about the timing and challenges that may arise in setting up a local mechanism to try post election violence offenders.
Department capacity
Key among the issues being raised is the prosecutorial department’s capacity to handle the cases, operational capacity of the Witness Protection Agency, pending reforms in the police force, and lack of adequate reconciliation mechanisms.
"The Government is not being genuine but simply reactive to the latest ICC ruling.
"It (Government) has in the past shown no will to address this issue despite having had evidence and opportunities to create a local process to handle these cases much earlier," says International Centre for Policy and Conflict Executive Director Ndung’u Wainaina.
Mr Wainaina says while the move to establish a local process is long overdue, it must meet the threshold of independence and international standards of credibility.
"We should by now have had an effective witness protection mechanism. What we currently have cannot claim to be fully operational because it has no capacity to protect witnesses," he says.
He cites pending reforms in the police force, which is also alleged to have contributed to commission of crimes during the violence.
In the past, attempts to set up a local tribunal that would have blocked ICC Prosecutor Luis Moreno-Ocampo from taking up Kenya’s cases were shot down by Parliament at least twice between 2008 and 2009.
This led former UN Secretary General Kofi Annan to hand over an envelope containing names of post election violence suspects to the ICC. Imenti Central MP Gitobu Imanyara says the latest move by Government is a right step but only if there is political will to pursue the matter to conclusion.
"Having an independent Judiciary and Director of Public Prosecutions have been positive developments. But this isn’t enough and there is still a lot more that must be done," he says.
Mr Imanyara cites the need for fair prosecutions, victims’ compensation, and boosting the Witness Protection Agency’s capacity, as key to having a credible process.
An official in the Justice Ministry is however, skeptical of the Government’s recent move, which he says is one alongside others related to the ICC, which could escalate political temperatures across the country.
"These cases should have been dealt with between 2008 and 2009. What we are planning to do now may whip up secterian emotions which would be bad for the country," says the official.
Kenyans For Peace with Truth and Justice Coalition Coordinator Carole Theuri says while a Witness Protection Agency already exists, it lacks necessary funding to enable it discharge its functions.
A recent report by the US based Human Rights Watch urged the Government to fully fund the Agency to ensure that it is robust, credible and has the option of relocating high value witnesses outside Kenya. According to the report many Kenyans questioned the ability of the Agency to offer adequate protection given attacks on some witnesses attributed to the police who are supposed to protect them.
"There have also been concerns about composition of the Agency’s advisory board which draws a lot of its members from Government," she says.
Currently, the Agency’s board members include Police Commissioner, Prisons Commissioner and Director of Public Prosecutions.
Police involvement
"The police and NSIS as part of Government cannot be on the advisory board of a body seeking autonomy from Government. Further, members of the police force have been accused of committing crimes during the post-election violence. They therefore should not be the ones advising on the safety of witnesses who possibly have evidence against them," says Theuri.
Justice Minister Mutula Kilonzo has in the past proposed the removal of police and State prosecuting agencies from the board. This he argues would protect it from outside interference and promote confidentiality in implementation of its mandate.
Elections Observers Group Chair Kennedy Masime says it would have been ideal to set up a local tribunal soon after the events of 2007/8 and establish a ‘forward looking’ Truth Justice and Reconciliation Commission as was the case in South Africa.
"The 5,000 cases represents the formal complaints but there are thousands more. It would be logistically impossible to handle all these cases," he says.
Masime describes suggestions to reopen the post election violence cases as a knee- jerk reaction and a ruse by the leadership to buy time.
The Government has in the past been criticised for similar reactions when some of the key post election violence suspects were summoned by the CID last year. This however came after confirmation of charges hearings had already been slated by the ICC for September last year.
"There are currently a lot of things that would impede the running of a local tribunal. While it is important for us to have a local mechanism to try other suspects, I would say we are not yet at the point where we can actively show that we have the political will and capacity to handle such a process," says Masime.

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