New Kenyan Justice Effort Meets Scepticism Latest move to investigate post-election violence still raises questions

about w ill to prosecute perpetrators. By Judie Kaberia - International Justice - ICC ACR Issue 317, 4 Apr 12 Rights groups in Kenya are questioning whether a new taskforce set up by the Dir ector of Public Prosecutions, DPP, to review criminal cases stemming from post-e lection violence in 2007 and 2008 will deliver justice. They are concerned that the multi-agency taskforce could serve as a smokescreen for continuing inaction. Even if they are proved wrong, it is unclear whether th e force will be able to ensure allegations against Kenyan police are properly de alt with. Months of violence following a disputed presidential election in December 2007 l eft 1,333 people dead and 350,000 displaced. According to a December 2011 report by the advocacy group Human Rights Watch, only six cases have so far resulted i n convictions in the Kenyan courts. The 20-member taskforce was established on February 9 with a mandate to assess t he progress of current investigations into the post-election violence, and to de cide whether there is enough evidence to pursue 5,000 cases that are currently b efore the courts. The panel, drawn from the DPP’s office, the police, justice ministry, the attorney general’s office and the witness protection agency, will make recommendations on what actions the government should take to bring the alleged perpetrators of the violence to justice. Dorcas Oduor, a top prosecution official who is heading th e taskforce, pledged to submit a report with the recommendations before Kenya’s ne xt presidential election, scheduled for March 2013. It is not the first time the Kenyan authorities have pledged to prosecute the pe rpetrators of violence. But so far its commitments have not translated into acti on. The government twice submitted a bill that would have established a national tri bunal to try election violence cases, but parliament rejected it on both occasio ns. After the government repeatedly failed to launch domestic prosecutions, the Inte rnational Criminal Court, ICC, launched its own investigations in March 2010. The fact that this international intervention was necessary at all raises questi ons about the Kenyan state’s willingness to ensure that justice is served. The ann ouncement of the DPP taskforce came just two weeks after the ICC confirmed charg es against four of the six suspects that the tribunal’s prosecutor investigated. In January 2012, ICC judges confirmed that Kenya’s deputy prime minister, Uhuru Ke nyatta, former higher education minister William Ruto, cabinet secretary, Franci s Muthaura, and Kass FM radio presenter Joshua Arap Sang would face trial for cr imes against humanity, as alleged orchestrators of the violence.(See ICC Confirm s Four Kenya Cases for more on the decision.) “It is interesting that the government is talking again about bringing accountabil ity to the victims. This is the third time that the DPP has put together a team to investigate the 5,000 cases, but nothing [has yet] happened,” Neela Ghoshal, Na irobi-based researcher for Human Rights Watch, said.

“Sometimes the justice system can function independently. But the big question is how many Kenyans trust the local courts? Any time there is something happening a t the ICC, the government makes many statements on how it’s going to seek justice in Kenya.” On past record, Ghoshal has yet to be convinced that the new taskforce will pave way for prosecutions of lower- and mid-level perpetrators. “What different is this taskforce going to make?” she said. “There are thousands of ca ses out there. One cannot really trust such statements from the government until we see the results. There are other areas in which the government – if it cared a bout the victims – could have made a difference yesterday.” FAILURE TO ADDRESS POLICE ROLE IN VIOLENCE According to the Commission of Inquiry on Post Election Violence, an internation al investigative panel set up by the Kenyan government, police were responsible for at least 405 fatal shootings and hundreds of injuries and rapes during the d isturbances of 2007-08. In its investigations into the actions of top-level figures accused of sponsorin g the violence, the ICC found reasonable grounds to believe that police were dep loyed in strongholds of the coalition government’s Orange Democratic Movement, inc luding Kisumu, and used excessive force against civilians. Despite this, no member of the police force has been convicted. One police offic er was prosecuted in relation to police shootings in Kisumu, but he was later re leased. The Kenyan government insists investigations into the Kisumu shootings are conti nuing. But the DPP has not said how many of the 5,000 post-election violence cas es currently before the courts involve allegations against the police. Christine Alai of the International Centre for Transitional Justice, ICTJ, in Na irobi warned that the taskforce must not conduct substandard investigations into the actions of police, or omit important cases. “It is obvious something has to be done with police… to ensure we can get accountabi lity and that cases are not thrown out on technicalities. The process should not be a sham due to shoddy investigations. Victims and Kenyans are tired of sham p rocesses,” Alai warned, referring to previous investigations into the shootings in Kisumu. Ghoshal says Kenyan police have repeatedly failed to admit responsibility for cr imes against civilians. According to victims interviewed by Human Rights Watch, police failed to document complaints submitted during the violence. “I have spoken to victims who were shot by police. They told me they went to the p olice and told them that they had been shot by the police. And a number of polic e said to them, “Sorry we can’t [accept] that,” said Ghoshal. Ghoshal contrasted the authorities’ failure to bring criminal prosecutions with th e civil cases which a number of victims of the violence have successfully brough t against police force members. “Twenty victims have won the civil cases [against the police] and the majority of them in Kisumu and Nairobi, yet the attorney general has refused to pay damages, so where is the political will of the government?” Ghoshal said. Ken Wafula, director of the Eldoret-based Centre for Human Rights and Democracy,

doubts whether police will be investigated and prosecuted. He would like to see a local tribunal drawn from international as well as Kenyan legal experts. “There are challenges. How do you grill the police who are supposed to carry out t he investigations? Some of them are perpetrators. That is why we have been askin g for a special tribunal. It would have been the most appropriate mechanism to a ddress this matter,” he said. It is not yet clear whether the panel will be able to call for such a special tr ibunal to be set up to handle outstanding cases, if it deems that appropriate. ARE AUTHORITIES WILLING OR ABLE TO PURSUE CASES? Kenya’s former justice minister, Mutula Kilonzo, who is now in charge of education , acknowledges that it has been a challenge to prosecute police accused of commi tting crimes during the unrest. Kilonzo spoke to IWPR shortly before he was replaced as justice minister on Marc h 27 by Eugene Wamalwa of the coalition government’s Party of National Unity. “Let’s appreciate that reforms in the police force are ongoing. The mere fact that c rimes were committed by police does not in the end mean that crimes will be cove red [up],” he said. “There is also a difference between regular police and the Crimi nal Investigation Department. I am confident that it is possible to prosecute ev en police involved in the [post-election] crimes.” Citing a shortage of prosecutors and a lack of funding, Kilonzo warned that the DPP might still struggle to conduct effective prosecutions “The challenge is that DPP only [exists as a] structure. It is not well funded. It does not have sufficient capacity [and] it has only 93 prosecutors and very lit tle money,” he said. Kilonzo also expressed concern that politicians might interfere with the justice process since some of them view any process designed to uncover the truth about the post-election violence as directed against them. “Politicians should stop politicising and stop thinking it’s about them. They assume the taskforce is about them. The fact is that international crimes occurred in Kenya,” he said. “These things happened and will affect the country in future if thi s is not resolved.” There have been mixed reactions to the DPP’s move to make progress on outstanding cases. Mzalendo Kibunjia, the chairman of the National Cohesion and Integration Commiss ion, NCIC, says the review of the cases comes too late, as Kenyans are now start ing to move on from the horrors of 2008. “I think this is going to open the wounds. The government did not do anything for all these years – people have now begun to heal. This is going to worsen the probl em,” he said. By contrast, Wafula believes that reexamining the cases and moving ahead with pr osecutions is a necessary evil in order to unearth the truth about the violence and thereby help prevent a repetition of it, particularly around next year’s elect ions. “It is late, yes; but it is necessary to set an example to Kenyans as they go to t he polls. A form of prosecution is good so that people cannot repeat the same [c

rimes],” he said. Wafula believes it would make sense to reduce the 5,000 cases to about 300. He a rgues that this would allow the DPP to deliver exemplary justice while also proc essing a more manageable number of cases and ensuring the necessary witnesses an d solid evidence are in place. “Let them sieve through the 5,000 cases and thin down to a few cases with evidence . Then deal with perpetrators, to send a message,” Wafula said. Alai of the ICTJ, however, wants as many cases as possible to be investigated th oroughly and objectively. “It’s not a numerical issue,” she said, adding that the reasons for past delays in the justice process should also be exposed. “We have to know what happened for the past four years. Why did the process stall?” she said. Alai hopes that the DPP’s initiative is not an attempt to cement the Kenyan govern ment’s challenge of admissibility at the ICC. Last August, ICC judges rejected a c hallenge to the legality of the court’s intervention in Kenya. Following the confirmation of charges against four suspects this January, lawyer s lodged a second admissibility challenge based on the view that the alleged cri mes were not serious enough to fall under the ICC’s jurisdiction. The court’s appeal judges are currently considering this submission. “Let [the government] not focus on ICC, let the process take its course,” Alai said. Judie Kaberia is an IWPR-trained reporter in Nairobi.