International Justice Monitor

A project of the Open Society Justice Initiative

HRW: Kenya needs independent tribunal to handle poll violence cases

Kenya’s criminal justice system cannot handle cases originating from the blood-letting of almost four years ago because the few that have made it through the system have either been poorly investigated or prosecuted, a new Human Rights Watch report says.

No prominent individual has gone to trial for the violence that almost ripped apart Kenya between December 2007 and February 2008, the report says. In addition, none of the cases of sexual violence from that period have gone past the initial reports lodged with the police, says the report that was released last week.

Despite widespread allegations of police shootings during the violence that followed Kenya’s December 2007 presidential poll, only a few cases have gone to court, and some suspects have been acquitted because of suspected evidence tampering, the report says.

In light of its findings, Human Rights Watch recommends Kenya revives an initiative to form a tribunal that will deal with cases not already before the International Criminal Court (ICC) because justice for most victims remains elusive.

“It is pretty clear the government has shown it doesn’t have the stomach to handle high level cases,” said Neela Ghosal, the researcher of the Human Rights Watch report titled “Turning Pebbles.”

Kenya challenged the cases of six prominent citizens that are before the ICC, arguing wide ranging constitutional changes will ensure the criminal justice system can handle cases dealing with crimes against humanity. The court has rejected Kenya’s challenge.

A 2009 bill presented to parliament to form a tribunal to handle the post-election violence cases failed to garner the two-thirds majority needed to amend the constitution and make the tribunal legal. The bill proposed tribunal staff be a mix of foreigners and Kenyans in order to help shield its work from political interference given the sensitivity of many of the cases that would come before it.

The tribunal was proposed at the time because the country’s criminal justice system was damaged by corruption, incompetence, under-staffing, and underfunding.

“We’re not there yet and it will take several years for Kenya to be where it needs to be,” said Ghoshal, referring to constitutional changes made last year that have forced changes in the leadership of the judiciary and prosecutor’s office.

Many of the post-election cases under investigation by the police have never moved beyond the filing of a complaint, Human Rights Watch found while reviewing a February 2009 report prepared by the department of public prosecutions. No inquest files have been opened for some killings, and where inquest files have been opened, investigations are incomplete.

During confirmation hearings for the new independent post of Director of Public Prosecutions before parliament, earlier reported on here, Keriako Tobiko told legislators in June this year that there are 700 cases in court related to the post-election violence. Of these, he said, 300 had been concluded and half of the perpetrators have been convicted. Tobiko did not give details about the crimes suspects had been charged with or the profiles of the suspects. He also said that there are 3,500 cases under investigation.

In a March 2011 report, however, the department states only 94 cases had resulted in convictions, Human Rights Watch reported. The organization also found prosecutors say they secured convictions in 49 sexual violence cases linked to the post-election violence., but when HRW researchers reviewed some of the cases using court documents and interviewing police and judicial officers, they found only one case related to the post-election violence and resulted in an acquittal, not a conviction.

Human Rights Watch also found that although a police task force formed to look into sexual offences received 66 complaints, none of those were followed up. In many of the complaints the alleged perpetrators were police officers the victims could identify.

During pre-trial hearings for the Kenya cases before the ICC, the work of the police task force came up because some of the suspects are facing rape charges. Defense lawyers for former police chief Mohammed Hussein Ali said the fact Ali set up the task force to look specifically into allegations of sexual violence against police officers showed he could not have condoned the acts.

Civil cases have had better success, with the courts deciding in favor of victims who have sued the government for their suffering. The problem, the report points out, is that the government has hidden behind a law that shields it from having to follow court orders and pay damages to the victims.

However, the post-election violence cases are not the first where the government has been sued for damages as a result of human rights violations committed by its officers, and in most of the previous cases the government has made payments as ordered by the courts. Most of those cases relate to violations that occurred during the governments of former Presidents Daniel arap Moi (1978-2002) and Jomo Kenyatta (1964-1978).

“Turning Pebbles,” is based on a review of prosecutors’ reports of the cases in court so far in relation to the post-election violence. The report compares those reports against the court documents of 76 cases. It is also based on interviews of 176 people, including victims, prosecutors, other lawyers, the police, and human rights activists. Human Rights Watch took seven months to research the report between March and November this year.

Kenya’s post-election violence claimed more than 1,000 lives before it ended in February 2008 following a month of mediation by an African Union panel led by former United Nations chief Kofi Annan. The other members are former Tanzanian President Benjamin Mkapa, and former Mozambican Cabinet Minister Graca Machel.

The full Human Rights Watch report can be viewed here.

5 Comments
  1. Kenya must be willing to dig deep into these matters of justice. Post 2007 poll election and the violence around other elections in Kenya’s past is the most single important stone that Kenya must turn inorder to give meaning to the word ‘justice’ or ‘haki’ in Kiswahili in our country. I was utterly shocked but nor surprised to read the HRW report. This change will take years.. I agree with Gooshal. But it is not that Kenya does not ‘have the stomach’ as Gooshal says of the report. It is absolute and simple lack of political will. It is a matter of people who cling on horrible political guts. The waters are then muddied by the same people who also need investigating so this is so very serious. It determines so much.

    Tobiko vs. HRW. It is again a matter of political interference. There is no way The Director of Prosecutions should stand before a nation and give such wrong picture of what is going on with regard to cases filed.. and manage to dupe a whole people and Parliament if there were political will.

    Kenya must have this independent tribunal even as the Hague continues its work because there are so many people who will be deprived of justice if this does not happen. I believe this can and must be done. I applaud many Kenyans who would rather put their lives on the line than see justice thwarted with regard to the women who were raped and infected with HIV too and the dead who exceed 1 333.. please do not reduce this figure to a round figure of 1000 maybe 1 500. There are always deaths that are not recorded in such instances. Kenya must wake up to full responsibility and be prepared in all of us to pay the price so that justice can be seeded in our nation and deeply!

  2. the ICC process is a tough time for us a country since we are gearing to the 2012 elections. there are so many things that still need to be handled and politically people’s emotions are still raw. there is need for Kenyans to stand together……

  3. The ICC’s concept of “persons bearing the greatest responsibility” invariably serves a grand international political agenda first before it delivers, if ever, on justice for the victims. The process is largely unrelated to the majority victims’ physical and mental trauma and so is unlikely to ever deliver any sense of closures. Worse still, it has been callously glamorized by the media and political class to the extent, convictions or not, it will certainly NOT serve to deter future would-be perpetrators of crimes against humanity in Kenya.
    Only a credible local, preferably grassroots, process (NOW) has the potential to bring closures and serve to deter. Kenyan Gacaca?

  4. Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable – a most sacred right – a right, which we hope and believe, is to liberate the world.

    For such NOT to repeat itself, action must be taken both by the people and the court (ICC), for the people to sieve and the court to correct

  5. I do not believe in this court where only third world countries are the victims of this giant modern colonial form ,especially African leaders are the only one to be prosecuted by this court seen , it starts many killer of developed nations has never
    been mention in any way for any count in this court .is this really justice ?……….

Post a comment

Comments are moderated and may not appear immediately.
See our Terms & Conditions and Privacy Policy