Three witnesses told the Kenyan High Court about documenting some of the deaths that occurred during the violence that followed the 2007 presidential election and what happened to them or a relative during that violence.
The three witnesses who testified on Tuesday were called by petitioners who have taken the government to court arguing it failed to protect them. The petitioners are 15 victims of police shootings, the Citizens Against Violence (CAVI), and the Independent Medico-Legal Unit (IMLU).
Once the three witnesses concluded their testimony, Kisumu High Court Judge Fred Ochieng asked the government whether they wanted to call any witnesses. Senior Principal Litigation Counsel Janet Lang’at, representing the Attorney General’s office, the Director of Public Prosecutions, and the National Police Service, said they did not wish to call any witnesses. Bernadette Mutie, who represented the Independent Police Oversight Authority, said they did not intend to call any witnesses.
Judge Ochieng then said, “The evidentiary part of the case has now come to a close.” He said next was for parties to make submissions on the issue of liability.
Tuesday’s hearing was scheduled after Judge Ochieng decided on November 21 that the petitioners will call three witnesses to testify on who was liable for the harm the victims of police shootings suffered.
With each witness who testified on Tuesday, the petitioners’ lawyer, Mbugua Mureithi, asked them whether they remembered giving an affidavit or affidavits and the date of the affidavit or affidavits. Mureithi also asked them whether they had any other evidence. Once Mureithi asked the witnesses these questions, Lang’at and Mutie then cross-examined them.
The first witness to testify was Samwel Mohochi. He testified about the work of IMLU during the post-election violence between December 2007 and February 2008. He told the court that at the time he was the Executive Director of IMLU. He said the organization documented the deaths of 80 people during that period, including the post-mortems.
“Did you at any time work closely with police?” asked Lang’at.
Mohochi said IMLU conducted its work under Section 386 of Kenya’s Criminal Procedure Code, “which includes presence of police when conducting post-mortems.” The section of the Criminal Procedure Code Mohochi referred to lays out steps police should follow when investigating a death and who the police report their findings to.
Lang’at also questioned Mohochi about IMLU’s report on the 80 post-mortems and how they determined who was allegedly responsible for the deaths.
“What lead you to conclude that police were 29 percent of the alleged perpetrators?” asked Lang’at.
Mohochi said IMLU’s report was also based on interviews with witnesses. He said the 29 percent Lang’at asked about “are instances where there was corroborating by witness accounts of police complicity in the deaths.”
He said there was a separate category of deaths that were gunshot related but IMLU were unable to attribute them to any particular people.
“So, when you are talking of police being perpetrators you are talking of gunshot deaths?” asked Lang’at.
“Yes,” answered Mohochi.
Later Lang’at asked Mohochi what remedies he thought were available to the petitioners. He said justice is one remedy.
“And in this particular instance there was no thorough, prompt, and impartial investigation on these incidents by the state,” said Mohochi.
Lang’at’s last question to Mohochi was to ask him what he thought motivated the petitioners to file the case before the court.
“I would not know what informed the petitioners to file this case, but I think it is within their right,” replied Mohochi.
Mutie asked Mohochi about details lacking in IMLU’s report about the 80 post-mortems. She said the report did not have the names of the victims or their families or any contact details. Mohochi agreed that is the case.
“Based on this report you will agree with me that it would be difficult for someone to begin investigations because there are no contact details,” asked Mutie.
“Yes,” replied Mohochi.
She also asked Mohochi about the challenges IMLU faced documenting the deaths of individuals during the post-election violence period.
“And one of the challenges is that IMLU faced the difficulty of tracing families to identify the bodies?” asked Mutie.
“Yes,” replied Mohochi. “There are many families we could not trace.”
“If IMLU was to go back would it be really possible to trace them [the families]?” asked Mutie.
“I think it will,” answered Mohochi.
“But with very many difficulties?” asked Mutie.
“But not with the difficulties we faced [in 2008],” replied Mohochi.
A little later Mutie asked Mohochi about the Independent Police Oversight Authority (IPOA), which she represents in the case. She asked him about when IPOA was formed and when it became operational.
“You yourself, have you lodged a complaint with the third respondent [in the case, IPOA] on behalf of any victim?” asked Mutie.
“No,” replied Mohochi.
Mureithi, the lawyer for the petitioners, asked Mohochi some questions in re-examination.
“Of the 80 cases that you dealt with you have contact details of the victims?” asked Mureithi.
“Yes,” answered Mohochi.
Mureithi asked him about investigations the police conducted into the deaths during the post-election violence period.
“Are you aware of the outcome of any police investigations?” asked Mureithi.
“I am not,” replied Mohochi.
“Are you aware of whether the 80 cases were investigated?” asked Mureithi.
“No, I am not aware,” answered Mohochi.
Mureithi asked him whether there was any limit on when the police can investigate a death. Mohochi said he was not aware of “a limitation of time.”
After Mohochi testified, Hudson Bob Libabu Lumwaji gave his testimony. He told the court his daughter, Barbara Sereta Lumwaji, was killed in Kisumu on December 31, 2007 while she was in her home. He said Valentino Ambiyo, his daughter’s finance, called him to tell him about his daughter’s death.
Lumwaji said when he went to his daughter’s home he could see a bullet hole in her door. Lumwaji said a photo was taken of the door at that time and that photo was part of his evidence. Judge Ochieng said he could not see anything in the copy that was part of Lumwaji’s bundle of evidence. Mureithi said that was also the case with his copy.
“Why did you wait until 2014 to file a case?” asked Lang’at.
“I was waiting for some lawyers to assist me,” replied Lumwaji.
“So, the lawyer who’s representing you, did he come to you or did you go to him?” asked Lang’at.
“I gave the information to him,” answered Lumwaji.
“You are being assisted? You are not paying any costs?” asked Lang’at.
“No,” replied Lumwaji.
When Lang’at concluded her questions for Lumwaji, Mutie asked him some questions.
“Please confirm that you did not witness the shooting of your daughter?” asked Mutie.
“Yes,” replied Lumwaji.
Mutie asked him about police records that showed an investigation into his daughter’s death was opened.
“According to the records they say it was opened in Maseno, but I never went to Maseno,” said Lumwaji.
Mutie asked him about an inquest file on Lumwaji’s daughter’s death that was opened and taken to the Attorney General’s office.
“To date I have not been called,” said Lumwaji.
Mutie asked him whether he was aware of IPOA.
“I am aware of IPOA,” said Lumwaji.
“Have you ever lodged a complaint with IPOA?” asked Mutie.
“No,” replied Lumwaji.
When Lumwaji concluded his testimony next to testify was Tobias Wanga Odhiambo. He told the court he was shot in the leg from behind on December 31, 2007. After being shot, he said he tried to walk away, but he could not and sat down on the ground.
Odhiambo told the court he knew he was shot by a policeman because while he was seated down on the ground four policemen surrounded him. He said three of them looked at their colleague, and they were worried for him. He said they took him to hospital in a white pick-up.
Lang’at asked whether he saw a gun when he was shot.
“I didn’t see the gun,” replied Odhiambo, adding, “there are bullet fragments lodged in my bone.” Odhiambo walked in court using crutches because one of his legs has been amputated.
Mutie asked Odhiambo whether he had filed a complaint with IPOA.
“Not yet,” replied Odhiambo.
“If given a chance would you report your case to IPOA?” asked Mutie.
“Yes,” replied Odhiambo.
In re-examination, Mureithi asked Odhiambo some questions about IPOA.
“Have you heard that they [IPOA] came to Migori and asked if there any victims of police shootings?” asked Mureithi.
“Not yet,” answered Odhiambo.
Mureithi asked him whether he had seen officials of IPOA in Migori where Odhiambo lives.
“I have not. I see them in the newspapers,” replied Odhiambo.
Once the witnesses concluded their testimony and Judge Ochieng determined no other party wanted to call witnesses, he said the next step was for them to make submissions on the issue of liability. He said the petitioners had 21 days to file their submissions on the issue. Judge Ochieng said after that, lawyers for the Attorney General and other government offices and the lawyer for IPOA would have 21 days to file their submissions once they had received the petitioners’ submissions.
At the start of the hearing Judge Ochieng heard submissions on allowing Christof Heyns, a former United Nations special rapporteur on extrajudicial, summary, or arbitrary executions, to be admitted as a friend of the court. Judge Ochieng allowed Heyns to become a friend of the court. The judge, however, restricted Heyns to making submissions only once all parties had done so and only on legal issues. Heyns was not in court on Tuesday, but he was represented by Isaac Okero.
The case next comes up for mention on May 27.
The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts.