Thousands of people who murdered, raped and burnt peoples' homes during the post election violence are likely to go scot free due to lack of evidence to prosecute them. A report by the milti-agency task force appointed to review the 6,081 cases filed by victims of the violence said they could only recommend prosecution in a fraction of the cases as the rest lacked evidence to sustain a conviction.
The task force said the investigations carried out on the cases were incomplete, had no covering reports, investigations diary,identity of suspects or even statements from the victims or event he investigating officers. The task force appointed by Director of Public Prosecutions Keriako Tobiko and headed by his deputy Dorcas Oduor had categorized the files they had received from the police into; murder, sexual and gender based violence including rape defilement and indecent assault, and general offenses that include thefts, malicious damage and arson.
Out of the 152 murder files, the task force found out that only four cases had been taken to court resulting in two convictions and two acquittals. One of the murder cases was withdrawn leaving a total of 147 cases still pending at various stages of investigations. The task force says there were 'material weaknesses' in the quality if the evidence presented to be able to support prosecutions. "In most cases the scenes of crime could not be identified with an acceptable measure of certainty."
"Clearly due to the fluid situation at the time, files could not be compiled and placed before the magistrates on time as required by the law, to facilitate the conduct of inquiries to establish the circumstances in which the deaths had occurred. Neither was DPP approached for advise or direction. A cursory examination of the files show they are incomplete, not containing essential information such as witness statements of complainants or even investigating officers," Oduor said.
Of the 150 case files involving rape and other sexual assault crimes, the task force said only 21 cases had been taken to court while the rest were at different stages of investigations. Five of the victims of rape have withdrawn the cases. Oduor said that majority of the sexual and gender based violence allegations involved individual or gang-rapes,defilement and other forms of sexual assault.
She said most of the attacks were reported long after they happened, some of them a year later when the police set up the task force on gender based violence. She said the 150 rape, defilement and sexual assault files they have so far dealt with had been filed and initially investigated under the Penal code and the Sexual Offences Act, before the ratification of the International Criminal Acts which demands a higher threshold evidence on sexual offences to be able to sustain a successful prosecution.
Oduor said most of the rape victims were not able to identify theitr attackers as they happened either at night or by a gang. "There was no verification of injuries in most cases to confirm allegations made by the complainants as there were no P3 forms and medical reports," she said.
Apart from being unable to identify their attackers,most of the rapists were likely to go free as their victims could not even remember the exact date of the attacks and only remembered the month and the year. Even in instances where the rape incidents were reported, the police did not record any corroborating evidence thereby weakening the cases even if the suspects were known.
The task force revealed that three rape suspects had yet to be arrested even though they were known; another 40 suspects had been identified but in 129 cases,the suspects were not known. Of the 3446 general offenses which include arson, thefts and malicious damage, the task force found that only 13 cases had been taken to court. Of the 13 cases, convictions were obtained in 11 cases.
At least 889 suspects who burnt, stole and damaged property during the chaos have been identified but have not been arrested while suspects in over 2,411 cases reported to the police are unknown. "Generally in most cases identification of the alleged perpetrators was inadequate, only victims referring to them by their ethnicity, language or war songs the perpetrators chanted," she said.
The four major post election vases that have been successfully prosecuted include that of John Kimita Mwaniki who was sentenced to 30 years in jail for for killing three family members in Kuresoi and Peter Kipkemoi Ruto Alias Saitoti who is in jail for 30 years for murder. A police constable Edward Kirui who charged with shooting two demonstrators in Kisumu and Stephen Kiprotich, Emannuel Kiptoo, Clement Kipkemei and Julius Nyogio who were charged with murder were acquitted due to insufficient evidence.
Oduor said the task force will be seeking a three-month extension of their term after it ended last month. She said they needed the extra time to be able to complete reviewing the rest of the cases. The interim report was presented to President Kibaki and Prime Minister Raila Odinga early in the week.