Tag Archives: Victims

TJRC, Mau Mau Regrets, Rhamu, Wagalla and Post-Election Violence Victims

There’s been a lot happening over the past few weeks relating to old and new atrocities in Kenya: here’s a short(ish) re-cap.

Beginning with old atrocities: just as Kenya celebrated its 50th year of independence, the Truth, Justice and Reconciliation Commission (TJRC) delivered its report– in several volumes- on human rights violations in Kenya between 1963 and 2008. There was the embarrassing spectacle of one of the persons adversely mentioned in the report (Bethwel Kiplagat, the TJRC Chairperson) ‘handing over’ that very report to another adversely mentioned person, Uhuru Kenyatta. It’s an image captured in the photograph within the following cartoon:

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Copyright Standard Group Ltd.

Kiplagat was mentioned in relation to the Wagalla massacre. His fellow commissioners were less than impressed by his testimony about how much he knew about the Massacre at a time when he was a powerful figure in government circles and whether he orchestrated a diplomatic cover-up in the aftermath. Kenyatta is individually mentioned with respect to Post-Election Violence; his broader family constitute virtually the entire volume on land injustices (OK, I exaggerate, but not by much); I doubt even the bookies would take odds on the chances of implementation of the major recommendations of the Commission. In addition, several commissioners took issue with ‘editorial changes’ that they allege were made following suggestions by senior government operatives to soften criticism of Jomo Kenyatta’s land-buying and resettlement practices.

And just to throw a joker into the draw, two individuals have gone to court to block the tabling of the TJRC report in Parliament (one of the steps required prior to implementation).

While on the subject of past injustices, the TJRC was always careful in its report to highlight that rights violations with impunity was one of the lessons that the post-independence government (and Moi’s government) learnt exceedingly well from the colonial administration. Thus, although the colonial period was not really a part of the TJRC mandate, land confiscation, massacres and discrimination during the settler period are well covered in the report. So perhaps it’s appropriate that Britain is bucking the impunity trend and offering an apology- of sorts- and compensation to former Mau Mau fighters detained and tortured in the 1950s.

Maybe this is to head off further costly and embarrassing legal battles that might have offered a legal precedent for other former colonial subjects to seek redress from London. Britain has steadfastly maintained that the obligations for actions by its colonies’ governments were assumed by the post-colonial states. The post-colonial states disagree. As far as the foreign minister’s statement went, it’s not quite the ‘sympathy and regret’ that the British Queen offered the Irish people for centuries of oppression and misrule

but it’s not too shabby either. Ultimately, however, it is for the victims themselves to judge whether the regret suffices.

Now to more recent atrocities, over 90 victims are allegedly pulling out from the ICC proceedings. From the report I’ve read (and I definitely don’t vouch for its accuracy), it seems that these are victims participating in the Ruto, Sang case. They have a number of grievances, one of which is that they feel that the Prosecutor and the ICC in general no longer serve their needs. There is also a suggestion that they were less than happy with the choice of legal representative (Wilfred Nderitu was appointed to represent them), having their own candidate in mind. Glancing at the 2nd VPRS report, only 120 victims were authorised to participate in this case (as at 25 March). So if it’s true that over 90 of them have pulled out, that would be a huge setback for victim participation. However, the news report is not clear if these victims were part of 120 currently participating, or the larger group of 300+ who took part in the confirmation proceedings.

It is also important to note that victims refusing to take part does not directly impact the trial process itself.

Finally, it seems that the flames of Rhamu are once again being fanned. 2 more people are dead, after dozens were killed nearly a month ago. Before that, there were deadly clashes just before the March election between members of the Garre and Degodia clans. One hopes that the security forces take this seriously, rather than dismissing it as ‘inter-clan’ skirmishes.

Previously, the government was going to deploy troops to carry out disarmament in the Mandera County (where Rhamu is located). Not much more has been heard about this idea; Someone may have told them that pursuant to Article 241(3)(c) of the Constitution, the National Assembly must approve the use of the Kenya Defence Forces in quelling any unrest or instability within the country. The government might of course argue that the KDF would only be providing ‘logistical support’ to police without being directly involved in operations.

The issue is sensitive because fighting between Ajuran and Degodia in the 1980s led to the disarmament operation in Wajir involving the Kenya Army that culminated in the Wagalla massacre of 1984. In the course of several days, hundreds (if not thousands) were raped, tortured or killed by soldiers. The wounds and memories remain painful from that day to this. No security official was arrested or prosecuted in the aftermath.

Interestingly, Deputy President Wiliam Ruto was the one who said the government would send troops to Rhamu to stop this latest surge in violence. According to the TJRC report (Vol 2A, paragraphs 543-544), back in 2000, when Ruto was Deputy Minister for Internal Security, he delivered a ministerial statement in a stormy Parliamentary debate on the Wagalla massacre in which he denied that thousands died- the figure he gave was 53. Furthermore, while he admitted that 13 were shot by troops, he explained to Parliament that the other 40 died from ‘excessive sunshine’.

Recent Court Documents in the 2 ICC Kenya Cases 09 February 2013

The Kenyatta/Muthaura defence teams have demanded that the Prosecutor produce a list of the lawyers who will be trying the case, and whether they belong to any national bar association and are in good standing with that bar. They also want a Prosecution code of ethics instituted by the Trial Chamber. The defence feels such a Code is important in order to regulate Prosecution investigations and dealings with witnesses, and encourage transparency in the trial proceedings. All Defence council appearing at the ICC must strictly adhere to the Code of Professional Conduct. This Code does not legally apply directly to the Prosecution.

The Prosecutor replied to the application by stating that neither a list of her lawyers nor information as to their ‘good standing’ before national bars would be helpful in ensuring ethical behaviour with respect to witnesses, since there is already a Witness Preparation protocol in place and avenues to monitor witness preparation as well as seek redress for violations of the protocol. She also questions whether a single trial chamber can institute a code of conduct for allĀ  prosecuting lawyers in all cases before the ICC. The Prosecutor further points out that any misconduct by a prosecuting lawyer against the administration of justice in the case is adequately dealt with by sanctions under the Statute.

The VPRS filed its first periodic report on the Status of its activities, the Victims in the Kenya cases, and the activities of the Common Legal Representative. The VPRS states that it will be mapping victims, reviewing applications, training intermediaries and setting up a database of victims. During a November visit to Kenya, the VPRS officials travelled to Nakuru, Kakamega and Kisumu (this particular report is solely for the Kenyatta/Muthaura case). Some of the worries that victims expressed included whether only victims in this particular case can benefit from reparations, ensuring intermediaries are well trained, and ensuring the registration of genuine victims only.

In relation to the Sang/Ruto Case, the VPRS found similar issues; these particular victims met with the VPRS in Nakuru, Eldoret, Lugari, Turbo and Siaya. Victims were also concerned about tensions before the coming elections.

The Prosecutor in the Kenyatta/Muthaura case has applied to amend the Document Containing Charges (what we Kenyans call the Charge Sheet). I previously reported that the Trial Chamber ordered the Prosecutor to remove an allegation in the DCC that 6 people were shot dead in Naivasha. The prosecutor subsequently received evidence that shooting deaths did occur in the context of the attacks. She now wants to reinsert this allegation into the DCC without the need for additional hearings.

The Pre-Trial Chamber (single judge ruling) has asked for observations on the above request to amend. The rules require that the amendment request be addressed to the Pre-Trial Chamber rather than the Trial Chamber. One issue that concerns the Judge is whether, given that the OTP is supposed to have largely completed investigations by the Confirmations stage, it is appropriate for new evidence to be admitted and the DCC amended. The Chamber also wants clearer and fuller information and witness statements from the Prosecutor

Fergal Gaynor, the Common Legal Representative for Victims in the Kenyatta/Muthaura Case submitted his observations on the application to amend. Although not opposing the application, he argues that the victims he spoke to are worried about the delays in the case that may result from this amendment. 4 have already died, according to Gaynor, some from medical/psychological effects of the PEV. Therefore, the victims wish to see ‘justice in their lifetime’.

The Kenyatta/Muthaura defence teams also submitted their observations. They feel that there is no reason why the OTP could not collect this evidence prior to confirmation of charges- therefore Prosecutor is abusing the latitude to submit new evidence prior to trial. They also feel that the prolonged publicity of the case in Kenya has now tainted the witness pool, therefore the court should be careful admitting new witnesses. The defence teams close by complaining again about the failure of the OTP to diligently investigate and to clearly ‘solidify’ the case; instead adding new witnesses and new allegations. They worry that the time to trial is too short to investigate the new statements to be produced by the OTP.

Update 18 February 2013: The Prosecutor submitted her observations about the conduct of her investigations, in which she disagreed with the Pre-Trial chamber as to the scope of her obligations with respect to post-confirmation investigations. The Prosecutor believes that only questions for the Pre-Trial Chamber are the sufficiency of evidence to support the amendment and any undue prejudice it may cause the defence at this stage- not whether and to what her office continued investigations after the confirmation of charges.

Recent Court Documents from the ICC Kenya Cases 20 December 2012

Kituo Cha Sheria submitted it’s Amicus Curiae observations on victims’ participation in the trial proceedings (Ruto/Sang here, Kenyatta/Muthaura here). Kituo’s observations centred on the security of the Common Legal Representative, the need for effective lines of communication between the CLR in Kenya (not sure if he’ll be based in Nairobi or not) and the OPCV at the Hague, the need for adequate, cost-effective support for the CLR, including logistics, office space and funding Victims’ travel, the need for trust and credibility between the CLR and victims, judicial supervision of the Victims Representation System and ensuring adequate information reaches the victims about the new system of representation.

 

The registry completed its proposals for the victims participation system (Ruto/Sang here, Kenyatta/Muthaura here). This particular document deals mostly with concerns from the OPCV as to the staff allocated by the Registrar between the two cases.

 

The Trial Chamber in the Ruto/Sang case extended the deadline for the disclosure of certain witness evidence to the defence at the request of the prosecution. Subsequently the prosecution notified the trial chamber that it no longer intends to rely on the said witness citing ‘witness management issues’ and the doubts about the ‘ongoing willingness’ of the witness to testify.

 

The Prosecutor in the Ruto/Sang case filed a response to a defence request that the Trial Chamber compel the Prosecutor to state whether she still intended to rely on a number of witnesses from the Confirmation proceedings. The Prosecutor urges the Court not to compel disclosure of the list of witnesses earlier than 9 January 2013; pointing out that the list is still provisional and that there are security issues at play.

 

 

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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