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The ICC arrives in Nairobi

By Parselelo Kantai in Nairobi
Posted on Monday, 12 April 2010 10:34

In the Know features an interview, opinion or analysis on the events making the news in Africa each week.

As international investigators arrive in Kenya to probe the post-election violence there is an awkward silence about how they are going to operate, says Parselelo Kantai.

Kenyan officials are reluctant to talk about the quiet arrival in Nairobi of an advance team from the International Criminal Court, a week after its chief prosecutor Luis Moreno-Ocampo was given the go-ahead to to proceed with investigations into the political violence around the disputed 2007 general elections.

It’s more than two years after the post-election violence and the safety of key witnesses has become a matter of concern. One former policeman claims his colleagues are trying to kill him to stop him talking.

“I am not at liberty to reveal the nature of their (the ICC officials’) visit,” said Justice Minister Mutula Kilonzo over a telephone interview with The Africa Report. He emphasised that the government would co-operate with the investigators, reiterating that Kenya was a signatory of the Rome statute.

A senior ICC official, Ms Béatrice Le Fraper Du Hellen, told local journalists: “The Office of the Prosecutor will not comment on investigations because of the principle of integrity… we will keep informing the public on the stage of investigations.”

Moreno-Ocampo is expected in Nairobi in May, when formal investigations are likely to begin. Although the Kenyan government has often stated its willingness to cooperate with an ICC investigation, there is resistance among some of the political elite and at the lower levels of the state apparatus.

A two-year investigation into the post-election violence instituted by the Kenya Police – themselves implicated in many of the 1,200 deaths that occurred – has been frustrated by the rank and file. Charges against perpetrators of the post-election crimes, notably the burning of the Kiambaa church in the North Rift, have been thrown out for lack of evidence. Magistrates have accused police prosecutors of shoddy work.

In the full-scale police probe into the post-election violence, investigators complained about missing files and lack of co-operation from colleagues. To date, only one policeman, implicated in the shooting of a protester in Kisumu at the height of the crisis, an incident that was captured by TV cameras, has been arraigned in court.

Several attempts to institute a local tribunal to try post-election violence suspects were routinely frustrated by Parliament. MPs lacked faith in Kenya’s judges and proposed the cases be taken to The Hague.

Many politicians suspected of involvement in inciting or financing violence had calculated that trials at The Hague were highly unlikely – now all that has changed.

An envelope – said to contain the names of cabinet ministers, several politicians and businessmen accused of perpetrating and financing violence – was handed to former UN Secretary General Kofi Annan over a year ago by Justice Philip Waki who led the official inquiry into the killings and displacements. No one seems clear whether Kenyans will ever find out the identity of the people that Waki accused. Yet legal experts are convinced the gopvernment will now have to work with the ICC – although it didn’t request the court to carry out these investigations.

“The government will cooperate, albeit reluctantly,” predicts Hassan Omar Hassan, deputy chairman of the Kenya National Commission on Human Rights. Because Parliament rejected a local tribunal to try the perpetrators, says Hassan, “they are in a straitjacket. They have to cooperate”.

Justice Minister Mutula Kilonzo hopes that Parliament’s recent approval of the draft Constitution, as well as the passing of the Witness Protection Bill, will guarantee independent investigations and ensure the safety of key witnesses.

“We are hoping that the President quickly assents to the Witness Protection Bill so that we can start recruiting officers. The director [of the Witness Protection programme] will have security of tenure as well as a measure of financial independence. The office was formerly a unit in the Attorney-General’s office. Now it will stand on its own.”

Several witnesses say they have been threatened because of their willingness to testify.

A former deputy commandant of the Administration Police, Mr Oku Kaunya claimed that there was a contract on his life – and that he was being trailed by Administration Policemen. He temporarily went into hiding.

Kaunya, now a deputy provincial commissioner, served as deputy commandant of the Administration Police (AP) in the run-up to the 2007 elections. He is said to hold vital information on the activities of the force during that period. The AP was said to have been integral to the rigging of the Presidential elections in favour of Mwai Kibaki.

Whether the ICC investigators will be able to debrief and protect witnesses such as Kaunya before somebody else gets to them is, for Mr Ocampo and his team, the key to a successful investigation.

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