Kenyan prosecutor: Insufficient evidence has made prosecuting post-election violence cases difficult

Kenya’s prosecution has concluded that many of the more than 4,000 investigations the police has been pursuing in connection with election-related violence four years ago cannot go to court for lack of sufficient evidence.

Deputy Director of Public Prosecutions Dorcas Oduor said on Thursday many of the cases did not have witnesses, statements from victims were taken a year after the crimes were committed, or no DNA evidence was collected. Oduor said many witness statements were also vague, making it difficult to build a case for court.

Oduor told participants of a seminar jointly organized by the Institute for Security Studies and the Kenya Section of the International Commission of Jurists that the inter-agency task force she leads has so far reviewed 4,300 investigation files out of a total 4,700. The police opened the files while investigating the violence that followed Kenya’s botched December 2007 presidential election. She said the task force divided the files into three categories: general offenses, murder, and sexual and gender-based violence.

The bulk of the police work involved investigating general offenses, about 95 percent of which were arson cases, said Oduor.

“Most of these victims were not at home, were not at the scene,” she said. The evidence that was clear is many people’s homes were burnt down but the details of how much they lost cannot be confirmed or verified because their property was all destroyed in the fires, Oduor said.

A weakness in the murder cases is the police investigated them using the Criminal Procedure Code and the Penal Code, limiting the scope for prosecution because the police did not find out who was in command of or responsible for attacks, Oduor said.

“They were not approaching the investigations as cases that occurred during conflict,” she explained. Oduor said the police did not investigate the cases as international crimes and as the review of the investigation files is taking place four years later, it is difficult for prosecutors to guide the investigations.

The murder case files are about 470 and the prosecution plans to ask inquests be opened to enable more thorough investigations to be carried out, Oduor said.

For the sexual and gender-based violence cases, no DNA or other forensic evidence was preserved, most of the statements were recorded a year after the crimes were committed, and many of the statements are vague, she said.

Many victims described the alleged perpetrators as a “police officer with a red beret and a jungle uniform,” Oduor said. “We are not saying that people were not raped, gang-raped … but the files were brought to us four year down the line, the reports were written one year [after the crimes].”

And where nongovernmental organisations (NGOs) and private hospitals came forward with evidence to back victims’ allegations of rape, that evidence was relevant to cases other than the ones the police had investigated, Oduor noted. She also said the evidence was not recorded in a manner the prosecution could use to take to court.

She said the inter-agency task force had asked some NGOs to collaborate with it to develop cases for prosecution, but those organizations declined.

 

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