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Posted on Friday, 19 July 2013 16:21

ICC - Justice on trial in Kenya

By Parselelo Kantai in Nairobi

Fatou Bensouda (L) Uhuru Kenyatta (C) William Ruto (R)/Photo©ROBIN VAN LONKHUIJSEN/AP/SIPA; BENEDICTE DESRUS/SIPAUSA/SIPA;BAS CZERWINSKI/AP/SIPA; KALPESH LATHIGRA FOR TARThe pursuit of those behind 2008's mass killings has turned into a battle of wills between Kenya's President Uhuru Kenyatta's new government and the International Criminal Court. As the stakes rise, witnesses, informants and their families face unprecedented pressure.


Geoffrey Wanjau Machira's latest job title is the unfortunate one of failed music producer. His company Production collapsed last August.

But it is the career that developed on the sidelines of his life in business that has caused him much more trouble in recent times.

Machira is also a failed International Criminal Court (ICC) witness. From 2010 to 2012, Machira had become a pawn in the case brought by the prosecutor's office at the ICC against the former head of the Kenyan civil service Francis Muthaura.

Until the ICC withdrew charges against him in March, Muthaura was one of the top officials accused of organising post-election violence in 2007 and 2008.

At the heart of the case against members of former President Mwai Kibaki's administration is the claim that they recruited elements from the Mungiki criminal organisation to drum up support for Kibaki's 2007 re-election campaign among Kikuyu youth in central Kenya and the Rift Valley.

Of the 30 known witnesses in the case against Kenyatta, 16 have now pulled out

The ICC prosecution asserts that several meetings were convened at State House in Nairobi between ex-President Kibaki and his senior advisers – including Muthaura and Uhuru Kenyatta (now president) – and Mungiki members.

According to Machira the participants at these meetings discussed how to defend the regime and also made plans to attack their political opponents and others in Nakuru and Naivasha in the Rift Valley.

Not only does Machira claim to have participated in those meetings, he says that he was the link between State House and three Mungiki groups under the umbrella title of 'Operation Kibaki Again'.

In late January 2008 in Mweiga in Nyeri District, Machira was involved in a bizarre accident. A truck came out of nowhere and slammed into his car. He suffered severe injuries. Today he can walk only thanks to pins and rods.

Like many Mungiki members who had agreed to work for Kibaki's re-election, Machira had found himself targeted for elimination. But when he decided to cooperate with the ICC's prosecutor, he ran into a bureaucracy still negotiating its way through the Kenyan cases.

The ICC initially approached Machira, but it never took him up as a witness.

Witness intimidation

Machira's life was threatened from all sides: by his associates in Mungiki who suspected he was withholding cash from State House, and by his former paymasters with whom he has fallen out.

So he turned to the media, arguing that hiding in broad daylight was his safest option.

And the story of Machira, with his inside knowledge of the political machinations around the 2007 elections, mirrors that of many witnesses and victims who find themselves buffeted about in the conflict between the new regime in Nairobi and the ICC's prosecution team.

Machira found his life in danger again because he had planned to be a witness in the case against Francis Muthaura. And that the case fell apart was largely because of the vulnerability of witnesses.

When she withdrew charges against Muthaura on 11 March, ICC prosecutor Fatou Bensouda explained that she could no longer pursue the case because witnesses had faced systematic attempts at intimidation, had died or were afraid to testify.

Over the past six months, at least 20 witnesses in the two Kenyan cases featuring Kenyatta and deputy president William Samoei Ruto have recanted their testimonies.

Many witnesses withdrew just before the March 2013 elections. Since Kenyatta and Ruto came to power in the Jubilee Alliance in April, the withdrawal of witnesses has further accelerated.

Steven Kay, lead defence counsel for Kenyatta, told The Africa Report that following the withdrawal of the prosecutor's case against Muthaura, there was a compelling logic to drop the case against Kenyatta as well.

"There is only one joint case against Muthaura and Kenyatta, therefore there is no conceivable legal reason why Kenyatta's case should proceed given this new development," Kay said. He suggested there were political agendas behind the bringing of the case.

Yet rights activists in Kenya say the pressure is all the other way. Of the 30 known witnesses in the case against Kenyatta, 16 have pulled out. By early May this year, four witnesses had withdrawn from the Ruto case.

Unprecedented Dilemma

"When Uhuru and Ruto solidified their political partnership late last year, witnesses from their two communities who had agreed to testify against them found themselves in a very awkward situation," says a Nairobi lawyer working for an international non-governmental organisation.

"Even if they themselves had been taken into the ICC's witness protection programme, their families were now very vulnerable," he explains.

The court confirmed the charges in the Kenyan cases in March 2010, so the ICC faced an unprecedented dilemma: in order to investigate and prosecute powerful members of the governing elite, it would require their cooperation.

A Kenyan researcher and human rights academic who has worked closely with the ICC says: "The ICC had a mandate to investigate extrajudicial abuses in Kenya that had taken place between 2005 and 2009. The Office of the Prosecutor (OTP) chose instead to only focus on the post-election violence. But in doing this, they did a very poor job of investigating the matter. In fact, many of us were convinced that [former prosecutor Luis Moreno-] Ocampo was not interested in prosecutions. In addition, they left the victims on their own. That's the gap politicians have exploited, and it is paying off."

Witnesses are being stretched between the two sides. 'Witness No. 4' is the most glaring example of this bizarre and public battle.

A crucial prosecution witness in both the Kenyatta and Muthaura cases, Witness No. 4 was sensationally withdrawn by the ICC's prosecution. That appeared to trigger the collapse of the case against Muthaura.

Kenya's attorney general Githu Muigai dismisses all claims of witness intimidation by Kenyatta's defence team.

A statement issued on behalf of Kenyatta argues that "the prosecution's new allegations – that OTP-4 [Witness No. 4] was bribed by the defence to drop his testimony – is not only entirely untrue, it is also a smokescreen of desperation because the prosecution is fighting to explain why it pushed to have the charges confirmed when they had in their possession for over two years further evidence from Witness No. 4 that contradicted his statement. OTP-4 also later admitted to the OTP that he had lied about his presence in key meetings with Kenyatta."

Lost amid the politics is the plight of the victims. For the victims to obtain reparations, says Wilfred Nderitu, the ICC-appointed lawyer for the victims in the Ruto case, they require a convicion. Most of those who are victims see their position as having drastically improved because of the deal between the Kalenjin and Kikuyu leaders, Nderitu says, referring to the growing numbers of victim-witnesses who are recanting their testimony.

Death squads

Nderitu says his work is complicated by the ICC's bureaucracy: "There are at least four different departments in charge of victims. Funds disbursement is slow, creating delays in engaging with the victims in Kenya."

Repeated delays in releasing funds have meant that Nderitu has had to dip into his own pocket to keep the mission going.

Apart from witness protection, there are wider questions about how the OTP has handled the investigations and selected its cases.

On 8 April 2009, Nairobi lawyer and politician Paul Kibugi Muite wrote to the pro- secutor. For a decade, Muite had represented Mungiki members in court. In his letter, Muite detailed "a pattern of extrajudicial executions of young men from central Kenya".

Muite estimates that death squads set up by the Kenyan police killed as many as 10,000 Mungiki members between 2005 and 2009.

Philip Alston, the UN special rapporteur on extrajudicial killings laid a similar charge against the Kibaki government when investigating in 2009.

However, neither Muite nor Alston have produced categorical evidence of the death squads or publicly named those who implemented the policy.

"Mungiki is not simply a law and order issue. It is a socio-economic issue. Everybody knows that Kenya is one of the most unequal countries in the world. I have never supported Mungiki's excesses but let us not just treat symptoms, let us appreciate the disease," says Muite.

At first he focused on the human rights abuses committed by Mungiki members and then he started looking at the sect's links to top officials. "My position was that extrajudicial executions are inexcusable in a country purporting to be governed by the rule of law," Muite said in his letter to then ICC prosecutor Moreno-Ocampo.

Kenya is different

Rights activists in Kenya have criticised what they see as the ICC investigators' naïve and narrow perspectives: "Kenya is a sophisticated society and the ICC is a young court. The manner in which the ICC had previously engaged with Africa, especially when you take into account the [Congolese rebel Thomas] Lubanga case, was very different from what they would encounter in Kenya. They needed to take Kenya seriously. They didn't," says a human rights defender who worked with witnesses in the early stages of the Kenyan investigations.

Like many of those interviewed, he insisted on anonymity out of fear that the state would target him. Activists say this climate of fear among civil society groups has increased sharply since the new government took over in April.

"The prosecutor's investigations to confirm the charges were not very com- prehensive. My own view is that Ocampo was waiting and hoping for state cooperation. It never came." says another human rights lawyer closely involved with the ICC.

Some staffers at the Kenya National Commission on Human Rights and the Commission of Inquiry into Post-Election Violence claimed that at least one individual sold information about witnesses and databases of names and addresses of informants.

No local protection

"There were no mechanisms to protect the witnesses locally," says a human rights defender. "We didn't have a [formal] witness protection programme. Anybody who came to us was taken in as a human rights defender. And I think this is where the problems began. We had no experience and no mechanisms. People disappeared in places like Eldoret because they were known to be cooperating with the ICC. This, I think, has greatly contributed to the crumblingofthecases,"he explains.

But perhaps the defence's strongest card has been the refusal of the Kenyan state to support the cases: "I don't think it's about Kenyan exceptionalism – I don't buy the argument about a sophisticated society," says George Kegoro, who heads the Kenya chapter of the International Commission of Jurists.

"The critical difference between Kenya and the other situations handled by the ICC is that the state here has a vested interest in the cases. In principle the state ought to support the trials. It does not. Instead, it has chosen to support the incumbents," he adds.

Yet the legal battles are far from over and the stakes could hardly be higher, on both sides. On the one hand it is the career and liberty of the two most powerful men in Kenya and on the other it is the credibility of the ICC and the drive for international justice.

On 17 May, Fatou Bensouda reinforced the court's commitment, saying the ICC would "explore other options" if Kenya fails to cooperate. This time there seems little room for a compromise. ●

This article was first published in the June, 2013 edition of The Africa Report, on sale at newsstands, via our print subscription or our digital edition.

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