Human Rights Watch (Washington, DC)

4 October 2013

Kenya - Rights Defenders Under Attack - Ensure Tolerance for Free Speech, Activism

Nairobi — Attacks and threats against human rights defenders are on the rise in Kenya, Human Rights Watch said today. Harassment of people perceived to support the International Criminal Court (ICC) cases against President Uhuru Kenyatta, Deputy President William Ruto, and the journalist Joshua arap Sang has been particularly acute. The three face charges of crimes against humanity for their alleged roles in Kenya's 2007-2008 post-election violence.

Kenyan authorities should immediately condemn this trend, Human Rights Watch said. The authorities should investigate and prosecute threats, intimidation, and killings of human rights defenders.

"The increasing threats and intimidation of human rights defenders, the meddling with witnesses, and the heinous killing of two prominent rights activists underscore the worsening environment for human rights defenders in Kenya," said Daniel Bekele, Africa director at Human Rights Watch. "The government should make clear that it won't tolerate intimidation and violence against those who speak their minds."

The trial of Ruto and Sang began in The Hague on September 10, 2013, while Kenyatta's trial is set to begin on November 12. During recent months, there have been growing reports of harassment, attacks, and threats toward human rights activists and people thought to be witnesses for the prosecution in the ICC cases. The attacks are part of an overall climate of hostility in Kenya toward the ICC process, Human Rights Watch said.

On October 2, the ICC unsealed an arrest warrant against a Kenyan journalist, Walter Osapiri Barasa, on witness tampering charges. Barasa, who was based in the Rift Valley town of Eldoret, is alleged to be acting on the basis of a "criminal scheme devised by a circle of officials within the Kenyan administration," according to an ICC statement.

Kenyan human rights defenders have also been targeted. On September 20, the police reported that a gang calling itself Nyaribo Support Group threatened to burn down the home of Maina Kiai, the former chairman of the state funded Kenya National Commission on Human Rights (KNCHR). The threats came in response to erroneous reports on blogs that Kiai had traveled to The Hague to testify against Kenyatta. Kiai is now the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association.

"President Kenyatta needs to assure the world that his government will protect people who are active in the community and ensure that those responsible for threats and intimidation against human rights defenders are held to account," Bekele said.

Dennis Itumbi, the president's director of digital media and the diaspora, is among the bloggers who have singled out people such as Kiai on social media. In mid-March Itumbi posted on his personal website a chart of civil society leaders and opposition figures he described as the "evil society" for supporting the ICC.

Beyond the ICC issue, the broader environment for human rights defenders also appears to have worsened. In the last two months, a prominent human rights lawyer in the western town of Bungoma and a human rights activist in Moyale in Kenya's North Eastern region were shot dead by unidentified assailants, with preliminary evidence indicating they were shot because of their human rights work. Authorities should immediately investigate these killings and hold those responsible to account, Human Rights Watch said.

"These killings may be part of a wider attack on civil society," Bekele said. "The government should show that it is ready to reverse this trend by ensuring that police investigators can get to the bottom of the killing of these human rights defenders, and by protecting other activists who face threats."

Growing Hostility towards Activists

Kenya's leaders have failed to prevent - and at times encouraged - hostility toward activists. While campaigning on a joint ticket for the March 4 presidential elections, Kenyatta and Ruto accused political opponents and civil society of using the ICC cases to try to exclude them from the race.

The two leaders and allied bloggers began to attack civil society soon after the ICC issued its summons for the two men to appear in The Hague in December 2010. Kenyatta and Ruto also have accused nongovernmental groups in Kenya of receiving funding from foreign organizations. Soon after returning from a status conference at The Hague ahead of the hearing to confirm charges against him in 2011, Ruto said:"NGOs should stop interfering with government matters, writing letters to their donors abroad to support the ICC intervention and compiling reports about post-election violence. It is none of their business."

Authorities have also failed to address hate messages on social media that appear to lead to threats against human rights defenders by Kenyatta and Ruto supporters - such as by groups that police say are threatening to burn down Kiai's rural home.

Social media and blogs have also been used to expose the identities of purported ICC witnesses. The first witness testifying in the Ruto trial, whose identity had not been disclosed publicly as part of protective measures ordered by the ICC, was named on Twitter and blogs in Kenya. The ICC trial chamber termed this a deliberate attempt to intimidate the witness and warned that revealing the protected identity of a witness could lead to prosecution before the ICC.

In some cases, social media and blogs have exposed people to threats by erroneously branding them witnesses for the ICC against Kenyatta and Ruto. In September pro-government bloggers circulated the pictures of Rahab Muthoni Kagiri and erroneously alleged that she was a witness against Ruto. She went into hiding after receiving death threats from people accusing her of betraying the president.

"Even though those behind the blogs that encourage hostility toward activists are known to the authorities, there has been no apparent effort to stop the threats," Bekele said. "President Kenyatta needs to assure the world that his government will protect human rights defenders and ensure that those responsible for threats and intimidation against them are held to account."

Witness Tampering

The issuance of the ICC warrant for Barasa was the first time the ICC Office of the Prosecutor has publicly pressed charges for obstruction of justice in its cases. Under article 70 of the Rome Statute, the treaty that created the ICC, "corruptly influencing a witness" is an offense against the administration of justice. If the accused is convicted, the ICC may impose up to a five-year prison sentence, a fine, or both. Barasa, a former go-between for the prosecution in the Kenya cases, is accused of offering bribes to two witnesses to withdraw, including the first witness in the Ruto trial, and of seeking to use one of these witnesses to make such an offer to a third witness.

An ICC pretrial judge issued a sealed arrest warrant on August 2, finding that the prosecution had shown "reasonable grounds to believe" - the necessary threshold under the Rome Statute to proceed - that Barasa did or attempted to "corruptly influence a witness," and that the warrant was necessary to ensure Barasa's appearance at his trial, and to prevent him from obstructing the investigation or continuing to commit the crime.

The arrest warrant has been transmitted to the Kenyan authorities, who are obligated to carry out the arrest. Barasa will be entitled to the full protection of his fair trial rights before the ICC. Kenya should arrest Barasa and hand him over to The Hague for trial, Human Rights Watch said.

"Persistent reports of witness interference have dogged the ICC's Kenya cases, and these risk undermining the court's ability to conduct a fair trial," Bekele said. "The arrest warrant for Barasa should send a strong message that those who seek to corrupt the ICC's work can be held to account."

Killings of Human Rights Activists

The climate of hostility against the ICC and those believed to be supporting justice for victims of post-election violence underscores a worsening environment for human rights defenders in Kenya.

On September 17, unidentified gunmen killed Peter Wanyonyi Wanyama, a prominent human rights lawyer in the western town of Bungoma. On August 7, security officers killed Hassan Guyo, a human rights activist in Moyale, in Kenya's North Eastern region.

Wanyama, 47, was shot dead outside his home at about 2 a.m. on September 17. In recent months he had received death threats linked to his involvement in several human rights cases, his family and associates told Human Rights Watch. The Law Society of Kenya told the media on September 20 that two other lawyers in Bungoma had received threats in the recent months.

Most recently Wanyama had represented a victim of a police shooting in May, when police opened fire on demonstrators in Bungoma. They were protesting the failure of the local police to protect people against a spate of deadly gang attacks that started in March and killed 3 people and injured more than 70 others.

Since 2009 Wanyama had also been representing victims of violent attacks in the Mt. Elgon area by the Sabaot Land Defense Force (SLDF) in 2007 and 2008 against people who objected to a land resettlement scheme. Wanyama had worked on numerous other human rights issues and was in regular contact with human rights organizations, including Human Rights Watch.

Guyo was killed as he travelled on a motorcycle taxi to Moyale from neighboring Wajir on August 7 to assess the human rights situation following clashes between police and villagers protesting the firing of a chief. At a roadblock in Moyale, a contingent of police and military officers ordered Guyo to turn back. He was shot in the back as the taxi turned and started back. Guyo had earlier told friends that a senior police officer in Moyale had threatened him with death.

Police in Bungoma and Moyale have told Human Rights Watch in recent weeks that they were investigating the killings. But past pledges of police investigations for such killings have not resulted in prosecution. There has been little progress in investigations of the 2009 killing of Paul Oulu and Oscar Kang'ara, who were documenting extrajudicial killings by police.

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