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Kenya: Ocampo's Secret Evidence

Murithi Mutiga

3 October 2009

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Nairobi — International Criminal Court prosecutors have compiled a damaging report on at least four top Kenyan officials, including Cabinet ministers, who could face charges of crimes against humanity by the end of the year.

The ICC has also quietly taken several witnesses out of the country in the last few months ahead of the trials that are expected to rock Kenya's political scene and which many Kenyans hope will serve to end the culture of impunity entrenched in the nation's politics.

The Sunday Nation has established details of the months-long effort to gather evidence behind the scenes, a process that began almost as soon as former United Nations chief Kofi Annan arrived in Kenya in early 2008 to mediate an end to the post-election violence.

Mr Annan is expected to return to Nairobi on Sunday to further pressure Kenyan leaders to speed up the pace of reforms, a key pillar of which is the trial of those who bear the greatest responsibility for the violence which claimed more than 1,300 lives.

A source familiar with the investigations said that while the entire nation's attention was focused on the negotiations over political power-sharing at the Serena Hotel in 2008, several teams of local and foreign investigators were dispatched to gather evidence in the areas worst-hit by the violence.

Among the teams was a delegation from the United Nations Office of the High Commissioner for Human Rights that arrived in Kenya last February. Representatives of the Special Rapporteur on the Prevention of Genocide and another team sent by the Kenya National Commission on Human Rights interviewed survivors, families of victims and members of government and the opposition. The outcome was what one international analyst described as a "wheelbarrow-load of evidence".

"Kenyan politicians assumed it would be business as usual and concentrated on negotiating for power," said the source, who cannot be named because of the sensitivity of the matter. "They did not know that some in the international community had decided it was time to end the culture of impunity and were busy gathering hard evidence."

The evidence they collected helped lay the groundwork for a separate ICC investigation into the involvement of a number of senior members of Cabinet and some heads of state security agencies. The Sunday Nation established that the focus of the investigations has now narrowed to at least three Cabinet ministers and one state security official against whom the Office of the Prosecutor feels it has enough evidence to sustain a case.

Among the four is a Cabinet minister from Rift Valley province who has been particularly vocal in calling for truth and reconciliation as opposed to trials of masterminds of violence. He is said to have declared that only "Indians and Kalenjins" would own businesses in his home town following the presidential election results, coded language that was read as calling for the eviction from the area of people from other communities.

The same politician is said to have distributed money to about 300 youths who committed atrocities as well as organised transport for the militia together with two other MPs from the region who have since died. Another Cabinet minister on the list of four is a senior member of the PNU coalition. He is said to have chaired a meeting at State House, Nairobi, where he organised members of the outlawed Mungiki sect to carry out revenge attacks in Naivasha.

The same politician or his associates are said to have requested a senior Office of the President official then serving in the National Security ministry to distribute guns to the outlawed sect to carry out the carnage. The request was, however, turned down.

A senior official of a state security agency said to have carried out indiscriminate killings has also been named as one of those who have been the focus of investigations as has another minister from the Rift Valley. KNHRC vice-chair Hassan Omar declined to be drawn on what ICC prosecutor Luis Moreno Ocampo told a delegation of civil society activists who met him recently at The Hague. But Mr Hassan praised the ICC's determination to act:

"Impunity can only be addressed by ensuring equality under the law. Every Kenyan must be punished for acting in ways that subvert the rule of law, and holding the perpetrators of violence to account will change the decades-old culture of politicians abusing the law at will."

Calls for implementation of reforms and an end to the culture of impunity gained momentum on Wednesday when Mr Moreno Ocampo announced that he would soon take up the Kenya case and that the country would serve as a "world example on managing violence". This followed the expiry of a deadline for establishing a local mechanism to try those who financed the militias that wreaked havoc following the General Election.

President Obama has called for the establishment of a special tribunal to try suspects, while both the United States and the United Kingdom have written to a number of government officials warning them to avoid standing in the way of reforms. The EU has joined the calls for action.

Dutch Ambassador to Kenya Laetitia van den Assum, whose country hosts the ICC at The Hague, told the Sunday Nation that holding the financiers of the violence to account was in Kenya's best interests. "There are those who say the pursuit of justice may threaten stability," she said.

"But that is a false choice. Stability flows from justice. Kenyans are right in saying that tackling impunity is the most important step in helping to deal with other urgent reforms," she said. Lawyer Prof Githu Muigai, who is a Special Rapporteur of the United Nations, said the next step for Mr Moreno Ocampo would be to present the evidence he has gathered to the pre-trial chamber at The Hague.

If he convinces the judges that sufficient evidence exists to link the suspects to the violence, the court will issue arrest warrants for suspects. These could either be "sealed warrants" where the suspects are not informed that they are wanted men, or they could be announced in open court.

The Sunday Nation has established that the key figures who drove the investigation in Kenya were the deputy prosecutor, Fatou Bensouda, and the ICC's head of investigations Michel de Smeldt. They did not rely entirely on the work of the Commission of Inquiry into Post-Election Violence chaired by Justice Philip Waki but used that and other reports as a basis for their inquiries.

The previously undisclosed information that investigators have taken some witnesses out of the country illustrates the length to which the ICC has gone to build a case against the suspects. Some of the witnesses described as "high value" and whose evidence was obtained by the Waki team left the country before the Waki report was officially released. There were fears they could be easily identified through a careful reading of the report.

The Rome Statute that created the ICC requires the court to "take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses." This means that witnesses may be taken with their families to a host nation where they are protected from possible retaliation by suspects.

This mechanism has been applied in the trial of former Congolese rebel leader Thomas Lubanga, who was the first person ever arrested under an arrest warrant issued by the ICC. However, it is not inevitable that local leaders will be hauled before the international court.

The government still has a chance to set up a local tribunal by supporting a compromise bill in Parliament where Imenti Central MP Gitobu Imanyara has tabled a bill seeking to establish a local tribunal. According to Prof Muigai, whichever mechanism is employed will serve as an indictment of Kenya's institutions.

"If the police had conducted timely and professional investigations, and if the Attorney-General had professionally prosecuted the cases and the judiciary dispensed justice in a timely fashion, this whole debate would not have arisen."

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