Kenya: Challenges facing investigations into the 4,576 post-election violence (PEV) cases can now be traced to a confidential letter from the police.
Attorney General Prof Githu Muigai
According to a confidential report from the CID headquarters secured by The Standard on Sunday, police have returned a verdict that none of the cases can be prosecuted.
The thorny issue featured at the ICC status conference on Thursday and Fiday where Attorney General Githu Muigai was asked to explain the exact position and status of the cases.
Prof Githu told the court that Kenya has independent institutions and he could therefore not sufficiently explain what was happening in other law enforcement organs about the cases.
Speaking to The Standard on Sunday on Friday, Director of Public Prosecutions (DPP) Keriako Tobiko also took issue with media claims that his office had failed to prosecute the cases. He submitted that although the police had indicated that all cases reviewed by a multi-agency taskforce formed in June 2012 were not prosecutable, the cases could still go on.
Clear reasons
“The position taken by police does not mean cases have been closed whether as ordinary crimes or otherwise due to lack of evidence, because their files remain open for future prosecution,” said Tobiko.
Despite his clarification, the DPP has been criticised by the International Commission of Jurists (ICJ), which argued that the Truth Justice and Reconciliation Commission (TJRC) presented a report on PEV injustices which should be fully investigated by Tobiko’s office.
ICJ programme officer Victor Kapiyo cautioned that it was wrong for the DPP to claim all cases were not prosecutable without stating clear reasons.
He reminded the DPP and the police that there are thousands of victims who allege their rights were violated and they should get justice.
The President of the East African Law Society James Mwamu also took a similar position as ICJ, arguing that it was upon the DPP to ensure the TJRC report is investigated.
“I do not agree with Tobiko on PEV cases because he has not investigated the TJRC report. Which are these cases that have no sufficient evidence?” posed Mwamu.
First, the letter, addressed to the DPP, indicated some complainants were relocated to other places after the PEV clashes, and particulars in the statements cannot lead to tracing them.
Second, some offences were committed while the complainants were away, hence they cannot identify who committed the offences and third, some complainants did not know their attackers, and could, therefore, not identify them.
In a letter dated January 17, 2014, signed by Lillian Kiamba for the Director of Criminal Investigations, six reasons were given on why evidence had not been forthcoming from all the 4576 cases reviewed.
It was claimed that some complainants identified their attackers as Kalenjin community because of language, but cannot identify any particular individual. Another challenge was that some complainants had been re-settled on their farms and they feared repercussions if they identified their neighbours as those who committed crimes against them.
Lastly, the CID head office claimed that some complainants had been compensated by the government and had left the areas where clashes occurred, hence they could not be traced.
“As much as we are working to carry out investigations, the current status of the 4,576 cases is not likely to change,” concluded the letter.
Lawyers have also demanded that the country put in place an International Crimes Division (ICD) of the High Court to deal with international crimes.
It has emerged that whereas the court will be established, it will not be modelled on the International Criminal Court (ICC) format.
That is what was as per the resolutions of stakeholders who met in Naivasha last week to deliberate on the establishment and model of the ICD.
In a 15-point internal summary report also secured by The Standard on Sunday, the stakeholders resolved that the ICD be modeled to serve Kenyan interests. Part of the reports reads: “It was agreed that the ICD should not be modeled on the ICC which has trial chamber, prosecution, Registry and Witness Protection sections.
“The division should be customised to Kenyan practice and procedure to serve Kenyan interests.”
Among some of the names suggested for the ICD include International and Complex Crimes Division (ICCD), International and Organised Crimes Division (IOCD) and the International and Serious Crimes Division (ISCD).
Tobiko denied opposing the ICD and said: “My office fully supports the establishment of an ICD of the High Court of Kenya, but we raised issues which were discussed at Naivasha and upheld by stakeholders.”
ICC model
He also opposed an ICD based on ICC model as had been suggested by a Judicial Service Commission (JSC) Sub-committee on the establishment of the ICD.
Issues to be considered include the design and architecture of the ICD and whether there are any cases arising from the 2007/08 PEV cases that are ripe for prosecution before the court.
Other arising matters included who should prosecute cases before the ICD and the issue of the expanded jurisdiction of the court to include the so called ‘traditional crimes”.
Tobiko scoffed at criticism that his office had not given the ICC enough cooperation over the post elections violence cases in Kenya.
He invited his critics to understand that ICC officers camped at his office last year for two weeks and went through all the 4,576 files, but reportedly failed to land on any credible evidence. “I gave them one room and they even said they did not need my officers. They went through the files for two weeks but they could not pin-point any evidence,’ said Tobiko.
When the Multi-agency taskforce chaired by Deputy Director of Public Prosecution Dorcas Oduor was formed in 2012, human rights groups and other organisations were invited to forward their representatives to the taskforce but none responded.
“We invited the Law Society of Kenya, International Commission of Jurists (ICJ), Kenya National Commission on Human Rights (KNCHR) and Kituo Cha Sheria.
Also given a chance were Federation of Kenya Women Lawyers (FIDA) and Muslims for Human Rights (Mhuri) but non responded by forwarding a representative to the taskforce,” said Tobiko. Members of the public were also asked to bring any evidence on the cases in confidence, but there were no responses. “The files are still open and have been returned to the police for further investigations. If new evidence comes up, we will be ready to Prosecute,” said Tobiko.
He however promised that he cannot, and will not, prosecute a case however expedient it may be when there is inadequate evidence to sustain the charge.
He said the biggest challenge was that the PEV cases were investigated as ordinary penal offences, not as international crimes against humanity.
By Stephen Makabila, The Standard
