The Kenyan government’s failure to fund its witness protection programme has led to fears for the safety of hundreds of people questioned during investigations into post-election violence in 2007-08.
Both Kenyan parliament and local civil society groups say the failure to set aside sufficient funding for the Witness Protection Agency, WPA, established in November 2009, could hamper attempts to prosecute perpetrators of the violence.
The concerns come amid fresh fears of threats to witnesses who will testify against four high-level suspects who will go on trial at the International Criminal Court, ICC, in The Hague next April.
Kenya’s deputy prime minister, Uhuru Kenyatta, former higher education minister, William Ruto, former cabinet secretary, Francis Muthaura, and Kass FM radio presenter Joshua Arap Sang are facing trial at the ICC for allegedly orchestrating the violence that broke out in the aftermath of a disputed presidential election held in December 2007. Two months of bloody unrest left approximately 1,300 dead and 350,000 others displaced.
The conflict split Kenya along ethnic lines, and peace was only restored after a power-sharing agreement was struck between the then opponents and now coalition partners, the Party of National Unity and the Orange Democratic Movement.
After sustained pressure from rights groups and victims of the violence, Kenya’s Office of the Director of Public Prosecutions says it has initiated fresh investigations into at least 6,000 cases involving alleged lower and mid-level perpetrators.
Director of Public Prosecutions Keriako Tobiko set up a task force in February 2012 to examine each of the cases and recommend which of them should proceed to trial. The 20-member body includes officers from the public prosecutions office, the police, the attorney general’s office, the justice ministry and the WPA.
“We have so far reviewed 1,446 files and forwarded them to the DPP [Director of Public Prosecutions] with our recommendations, and he is expected to give the way forward,” Senior Deputy Prosecution Counsel Dorcus Oduor, who is leading the task force, said. “We are now reviewing a further 2,000 files we received from the police. We will soon embark on preparing a draft interim report.”
Ensuring witness safety will be key to successful prosecutions and trials. However, a report by parliament’s departmental committee on justice and legal affairs says the WPA cannot take on responsibility for any more witnesses, because the government has granted only 235 million of the 1.5 billion Kenyan shillings (2,800 out of 18 million US dollars) that the agency requested for the year from June 2012 to June 2013.
The funds are meant to cover the WPA’s day-to-day running costs, staff salaries and the protection and – in extreme cases – relocation of witnesses.
The committee says that within the overall budget, the funding specifically earmarked for providing security to witnesses and their families is significantly lower than what is required.
“Witness-related expenditures required 458 million Kenyan shillings but the 40 million Kenyan shillings currently allocated will only provide for eight witnesses with an average household of five persons, totalling 40 persons. This amount can only provide for witnesses already in the programme, with inability to take in more,” the committee’s report said.
Kenya’s National Commission on Human Rights has warned that failure to fund the WPA adequately will seriously jeopardise the ongoing investigations.
“Who will be willing to testify in court if they fear for their lives?” Dr Samuel Tororei, the human rights commission’s acting chairman asked during an interview with IWPR.
Tororei’s comments are supported by Ababu Namwamba, a Kenyan legislator who sits on parliament’s departmental committee on justice and legal affairs.
Namwamba said that by not funding the WPA properly, “the government has failed to prioritise on crucial state matters”.
“It is quite naïve to expect the DPP’s office to properly investigate these cases while the WPA cannot take on any more witnesses,” Namwamba said. “You cannot strengthen the judiciary and then fail to strengthen other arms like the DPP’s office, the police and the Witness Protection Agency.”
The ICC has twice rejected efforts by Kenya to access evidence held by its prosecutors, arguing that the government could not be trusted with confidential information relating to the Hague court’s witnesses. This means Kenya will have to rely entirely on its own witnesses and evidence to conduct local prosecutions.
Meanwhile, a succession of challenges by the Kenyan government to the cases being heard in The Hague has raised concerns about whether it is really willing to cooperate with the ICC process, and also to fully support a local justice mechanism. Kenya has challenged the admissibility of the ICC cases, and unsuccessfully asked the United Nations Security Council to defer the trials.
Proposals to establish a special national tribunal to try cases stemming from the post-election violence have twice been rejected by parliament.
Tororei says state support for the WPA should not be half-hearted. He argues that that building such institutions should be seen as an opportunity for Kenya, rather than a requirement imposed by the ICC.
“If we want to enhance our quest for justice, we need to look at the Witness Protection Agency as advancement of the country’s justice system,” he said. “If funding is denied only on the basis that it [WPA] is seen as a servant of the ICC, then we are surely missing the boat.”
Aside from the four individuals facing trial at the ICC, only four cases relating to the post-election violence have been completed in Kenya itself. In the most recent case, ending in June this year, the Nakuru High Court sentenced Peter Kipkemboi Rutto to life imprisonment for killing a 67-year-old man in January 2008.
Hundreds of other cases remain unresolved, while others have been thrown out by the courts for lack of evidence, following weak investigations by the police. The DPP says, however, several more trials are on the cards.
“We are pushing on with these cases,” Tobiko, the Director of Public Prosecutions, told IWPR. “We are getting there in terms of investigating and bringing these cases before the courts.”
The Centre for Human Rights and Democracy in Eldoret, which has worked with numerous victims, is urging caution, and warning of possible reprisals against anyone willing to testify in Kenyan courts.
“There is an old lady here in Eldoret whose husband was killed by neighbours and was quickly buried in January 2008. The attackers however came back two days later, exhumed the body and threw it in a well. She had to flee and is now seeking justice, but she is afraid of being attacked again,” the centre’s deputy head Nicholas Omitto said.
Other commentators argue that local investigations into the post-election violence should wait until after the WPA is fully set up and funded, and until reforms of both the Kenyan police force and the DPP’s office are completed.
“There are very many problems facing the process of getting justice for the victims of the post-election violence,” said George Kegoro, executive director of the Kenya Section of the International Commission of Jurists. “The investigations by the DPP are reliant on a police force that lacks the capacity and support of Kenyans to adequately handle this task. Also, what will happen with witnesses who fear for their lives when the WPA is so grossly underfunded? These are serious issues that needed to be addressed before the cases began.”
Tobiko accepts that it will be a huge challenge to investigate the thousands of local cases if potential witnesses are unwilling to come forward because they fear for their safety.
“Witness protection is a critical requirement of the justice system, and not just in regard to the post-election violence cases,” he said. “This is no doubt a concern when it comes to these cases, because we are talking about potential witnesses who will testify about persons known to them, members of their own communities, or even certain senior government personalities.”
Despite the large funding shortfall, the WPA is adamant that it will fulfill its mandate of protecting witnesses who will testify locally and in The Hague. Under the Witness Protection Act, the WPA is mandated to provide protection to all witnesses – including those cooperating with international judicial bodies like the ICC.
“For the time being, we will work with what has been given. That is all I can say at the moment,” WPA director Alice Ondieki said. “It is only fair that those people who feel threatened come forward and apply for witness protection and we will no doubt take up the cases. Many people have applied and we have not hesitated to help in such cases.”
The ICC says all of the witnesses in the cases it is handling currently reside outside Kenya for their own protection. Even so, intimidation is still a major concern.
“The threat to witnesses is not only to them, but to people who are perceived to be witnesses and their families,” Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC, said. “The ICC witnesses are safe and we will continue to ensure their safety, but of course the threats continue and there might be more threats as we approach the trial stage.”
Fears about the safety of ICC witnesses have mounted since a start date for the trials was announced in early July. Supporters of the defendants have been accused of using internet forums and social media to send intimidating messages to individuals thought to be providing testimony for the prosecution.
Mochochoko said that the ICC’s Office of the Prosecutor had raised the issue of witness intimidation with the Kenyan government and was investigating several cases.
“Those threats must stop. If we have evidence of anyone threatening witnesses, we will work with the Kenyan government to make sure that those people are brought to account,” Mochochoko warned.
Emmanuel Igunza is an IWPR-trained reporter in Nairobi.