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Effective Witness Protection key in Credible Criminal Justice Process

By Ndung’u Wainaina

The final stretch of International Criminal Court (ICC) train is here with us. The process has moved from ‘substantial grounds’ to ‘beyond reasonable doubt’.  Some of the indictees held rallies insidiously mocking and disparaging victims. Because of corrosive impunity enjoyed by the mighty and powerful and their surrogate supporters in Kenya, victims are treated as atavistic savages with no rights.  To them, victims deserve no compassion and respect for their dignity.  Political power is more important than human life and dignity.

I want fair justice for the indictees but that justice is meaningless if the suffering and pain of thousands of Post-Election Violence (PEV) victims is inconsequential. The condemnation of children to destitution, loss of many innocent lives, and the raping of girls and women stripping them off their dignity and leaving them emotionally unstable is pain that can only be condoned by an impunity-ridden state. The perpetrators act with a sense of impunity, secure in the belief that their actions would go unpunished. What is more, the government has actively continued to offer sanctuary to suspects and subvert justice.

The Government and political establishment are notorious for making noise at the right moments and going mute when the dust settles. The PEV serious crimes accountability is a clear example of existence of Citizenship in a State that does not guarantee equal protection to all its citizenry. Justice is differentiated. It is simply not for everyone.

The ICC process has exposed hypocrisy of the Kenyan State.  Justice, privileges and protection exist in abundance for those who can afford them. The payment for these “rights” is made in two forms, depending on those accused or threatened.  Legitimate government exists to apply and enforce laws of land equally and bring hope for change. But in Kenya, government and elections have ceased to mean anything anymore to the majority of people. Impunity prevails.


It should be recalled that it is now over 4 years since the crimes related to PEV were committed. Credible national criminal proceedings have been thwarted not because of lack of evidence or capacity but rather devious politics and lack of political will to dismantle impunity cartels that have fully compromised and captured state and its organs. It is common knowledge to Kenyans that the ICC prosecutor considerably relied on evidence gathered by public institutions in Kenya for his initial investigations. These institutions and their reports are at the disposal of the Kenyan government.


There is near de facto impunity by the government of Kenya. Unfortunately, ICC will only give us part of the PEV crimes story while the final truth will come out if the rest of the perpetrators are brought to justice through credible complementarity process at national level. The government has never genuinely accepted ‘positive complementarity’, which assumes that ICC and Kenyan authorities are reading from the same script with the overriding factor being fair and expeditious administration of justice.

Positive complementarity would ensure high level perpetrators are tried at the ICC while lower ones are tried locally with ICC support. Has the government tried anybody despite repeated findings of international crimes having been committed in Kenya?  The government will not allow it to happen due to the inherent fear within the top echelons of government of ‘ripple-effect’ of lower level perpetrators.

Police and some politicians have in unison publicly discouraged such prosecutions for fear of being implicated by the middle-level perpetrators. So, the ‘right’ strategy for them is to do nothing, which to me, is a doomed strategy. The wheel of justice is sure to roll slowly but sure.  Remember the case of John Demjanjuk, the Nazi death camp guard convicted in 2011 for his World War II role?  Well, it took over 60 years but for Kenya, I strongly feel the gods of PEV victims will call sooner.

Kenya has all the evidence across all security agencies. The perpetrators are well-known but falsely ‘protected’.  In fact, no less than former Provincial Criminal Investigation officer Rift Valley who partly headed such investigations appeared at the ICC as Ali’s defence witness. The DPP, on the other, has so far perfected the art of forming useless task forces and issuing press warnings of ‘action’ and little action.

To think they can use these publicly funded reports to serve private interests of the political leadership is to live on the wrong side of history. In the fullness of time, individuals will be called to account. That is why public officers ought to be more diligent and accountable and not serve ethnic or nepotistic interests.

Let me turn my attention on witnesses. A witness is the cornerstone for successful investigation and prosecution. Therefore, a credible witness protection unit is an effective tool for combating crimes, particularly organized crime and international crimes. It is a crucial tool for both prosecutors in the filing of criminal charges against suspected criminals and the police in clearing investigations and securing successful prosecutions. Witness protection is no longer an issue that can be effectively addressed at the national level alone as it demands international cooperation too.

Indeed, successful prosecution of crime cases greatly depends on credible witnesses who provide their testimonies without fear of retribution. Ensuring the safety and welfare of witnesses sends a strong message to citizens that the justice system is effective and demonstrates the commitment to bring criminals into the folds of the law. Keeping witnesses safe is as important as bringing wanted criminals to justice.

The Hon. Attorney General(AG), Prof. Githu Muigai  made a statement while addressing a witness protection forum to the effect that the Office of the Prosecutor of the ICC had so far failed to disclose identity of his witnesses to the AG’s office. Apparently, the AG was trying to indicate that this ‘failure’ is jeopardizing his efforts to guarantee protection for witnesses and potential witnesses in relation to PEV. Witnesses need to have confidence in the law enforcement and prosecutorial authorities for them to come forward and assist in the cases as well as assurance of protection from intimidation from the suspects and their supporters.

The AG is deliberately misleading the public as the Rome Statute does not anticipate sharing information with an entity which is not party to its proceedings. The Kenyan state is not a party at this stage to the ICC proceedings and is therefore not entitled to disclosure.  This can only be done to the defence teams of the ‘Ocampo 4’.  In this new era of transparency and honesty under the new constitutional dispensation, the AG cannot deliberately feign ignorance of this fact as Kenya’s obligations as a party under present ICC proceedings ended when the ‘admissibility challenge’ collapsed. AG has no role in criminal proceedings.

These maneuvers by the AG  are  in line with the unconcealed government of Kenya’ s policy to frustrate justice for the PEV victims by engaging in sinister justice sabotage missions instead of taking concrete steps to initiate a local mechanism to address crimes committed during the PEV. The government lacks the determination and will to confront impunity. As a state officer hired under the new dispensation, Prof. Githu must show paradigm shift in dealing with PEV cases and stop reinforcing impunity.

Writer, Executive Director, International Center for Policy and Conflict: This e-mail address is being protected from spambots. You need JavaScript enabled to view it


0 # juliet 2012-07-20 13:44
Nice piece
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