Witness Says Prosecution Never Followed Up on Sexual Crimes Allegations Made to Government Commissions

A senior prosecutor told Kenya’s High Court the Directorate of Public Prosecutions has never followed up on allegations of sexual crimes made to two government-appointed commissions that investigated the violence that followed the 2007 presidential election.

Jacinta Nyaboke Nyamosi told the court on Wednesday that as head of the Sexual and Gender-Based Violence Division at the directorate she had not asked the commissions that investigated the violence that occurred between December 2007 and February 2008 to share the complaints they received.

Nyamosi returned to court on Wednesday to continue testifying as a witness for one of the respondents to a petition by survivors of sexual and gender-based violence (SGBV) that occurred after the bloodshed that followed the 2007 poll. She began testifying on March 29 but had to break-up her testimony due to the court’s packed schedule.

She was called to testify by the Office of the Directorate of Public Prosecutions (ODPP). On Wednesday Nyamosi told the court she is a Senior Assistant Director of Public Prosecutions and has been with the directorate’s SGBV division since 2007.

Following the violence of December 2007 to February 2008, and as part of an agreement to bring it to an end, the government appointed two independent commissions in 2008 and 2009.

One was the Commission of Inquiry into Post-Election Violence that had a mandate to investigate in depth the bloodshed that occurred after the 2007 presidential poll. This commission is commonly referred to as the Waki Commission, named after the judge who chaired it. It is also often referred to by its acronym, CIPEV.

The other commission was the Truth, Reconciliation, and Justice Commission (TJRC) whose mandate was to investigate injustices in Kenya between December 12, 1963 (when Kenya got independence from Britain) and February 28, 2008 (when post-election violence ended).

“Are you aware that the Waki Commission did consider and review over 900 cases of SGBV?” asked Willis Otieno, who is representing the petitioners.

“I know that they received complaints, but I cannot remember the number,” replied Nyamosi.

“Since the Waki Commission completed its work, have you ever asked the Waki Commission to share any SGBV reports?” asked Otieno a little later.

Nyamosi replied that a multi-agency task force the Director of Public Prosecutions appointed to look into post-election violence cases may have done so.

“Specifically, on SGBV, have you ever asked the Waki Commission” to share the allegations it received, Otieno asked.

“I have not done it personally in my capacity [as the head of the SGBV division],” replied Nyamosi.

Later, Otieno wanted to know about the work of the TJRC, and he asked Nyamosi to read out a paragraph from the commission’s four-volume report that summarized allegations of sexual and gender-based crimes the commission received.

“Have you ever looked at any of the complaints [of SGBV] the TJRC received?” asked Otieno.

“I have not looked at this report in detail, but I would be interested in implementing this report,” replied Nyamosi.

During his cross-examination Otieno also asked Nyamosi about the obligation of the state to its citizens. She said that it is the state’s obligation to ensure its citizens’ right to security “as far as possible.”

Sometime later, Otieno followed up on this issue.

“Does the obligation of the state, does it diminish during conflict situations?” he asked.

“It does not diminish,” replied Nyamosi.

Otieno then asked what the state could do, beyond criminal prosecutions, if its citizens’ rights had been violated.

“The state can actually compensate where it has flouted the rights of the citizen, if it was so glaring,” Nyamosi said.

“Are there any exceptions to these rights where the state can abandon its obligation?” asked Otieno a little later.

“No,” replied Nyamosi.

“Is the obligation absolute?” asked Otieno.

“You can say so,” answered Nyamosi.

Another subject Otieno questioned Nyamosi about was on victims of sexual crimes being able to report what happened to them to the authorities. He asked her to read excerpts of an affidavit in which two of the petitioners’ allege that the people who sexually assaulted them were police officers. He also asked her to read another excerpt in which another petitioner said she reported her allegation of sexual violence to the authorities, but it was not acted on.

Otieno then asked Nyamosi to explain some of the challenges victims faced if their alleged perpetrator is a man in uniform.

“The obvious challenge will be reporting itself,” replied Nyamosi.

“Why?” asked Otieno.

“You would fear going to the same person,” said Nyamosi.

Once Otieno completed his cross-examination, Edwin Okello of the Office of Directorate of Public Prosecutions asked Nyamosi some questions in re-examination.

Okello referred her to a letter written from the Criminal Investigations Department (CID) of the police written to the ODPP in October 2013 and asked her to read it. Nyamosi read the letter, which said the CID had opened 381 case files in relation to post-election violence. With respect to the petitioners, “no case files were opened because none of the eight petitioners reported to the police,” said the letter Nyamosi read out in court.

The eight petitioners referred to in the letter are six women and two men who have petitioned the court to find the government failed to protect them during the post-election violence period. Four organizations are also petitioners in the case. These are: the Coalition on Violence against Women; Physicians for Human Rights; the Independent Medical and Legal Unit; and the Kenya Section of the International Commission of Jurists.

The petition has been filed against the Attorney General; the Director of Public Prosecutions; the Inspector General of Police; the Independent Police Oversight Authority; the Ministry of Medical Services and Ministry of Public Health. When the petition was filed in February 2013, the two ministries existed. They have since been merged to form the Ministry of Health.

Nyamosi concluded her testimony once Okello finished his re-examination. She was the only witness that the ODPP called. None of the other respondents called a witness.

At the end of the hearing, Judge Enoch Chacha Mwita scheduled a mention of the case for April 25 when he will set a date for the court to visit public hospitals in Nairobi to see the facilities they have to receive and treat victims of sexual violence. On that day he will also set a date for hearing closing submissions.