Further Threats to ICC's Kenya Witnesses

Wednesday, 28 August, 2013

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IWPR contributors

Twelve witnesses who will testify for the prosecution in the trial of Kenya’s deputy president William Ruto have told IWPR that they have sought help from the International Criminal Court, ICC after persistent threats to their safety.

IWPR understands that the ICC has moved some of the witnesses, who were living in the Rift Valley region, to a neighbouring country, and that it has relocated others within Kenya.

Ruto is facing trial in The Hague on charges of crimes against humanity for atrocities committed during the ethnic and political violence that broke out after Kenya’s December 2007 presidential election.

More than 1,100 people were killed and 600,000 others were uprooted from their homes during two months of bloodshed.

A journalist, Joshua Arap Sang, will be tried alongside Ruto for similar charges including murder, persecution and forcible displacement. That trial is scheduled to start on September 10. Kenya’s president, Uhuru Kenyatta, faces trial in a separate case.

A total of 42 witnesses are expected to be called in the Ruto/Sang case.

Witnesses have told IWPR that they received threatening phone calls and text messages warning them about their participation in the trial.

“The threats are too scary, because I was warned by one caller that I would be killed if I did not stop working with the ICC,” one witness, who is still in Kenya, told IWPR. “The threats have been consistent in the last few months, but personally I have also taken measures to ensure I am safe, apart from the support I get from the ICC and other protection groups.”

IWPR understands that five of the 12 witnesses have now been moved out of the country, while the other seven have remained in Kenya at their own request. Of the latter, six are under protection and are away from their homes, while the seventh is thought to be living in a safe place of his/her own choosing.

These seven witnesses say they have decided to remain in Kenya for the foreseeable future, assuming the security situation does not deteriorate further.

However, they say they may need to be relocated when the Ruto/Sang trial gets under way next month.

“Once the trials begin the situation may not be very safe, and it will be proper to move out of the country until later depending on how the cases will go,” another of the seven witnesses said.

A witness who is living in Uganda told IWPR that his family in Kenya had been receiving threats intended to get them to make him withdraw his testimony in the ICC case.

“They have been putting pressure on my family to force me to go back home and stop cooperating with the ICC,” he told IWPR by phone.

According to the witness, the ICC is relocating him to another African country. Meanwhile, preparations are being made to fly his family out of Kenya.

IWPR contacted the ICC, but the court’s Office of the Prosecutor, OTP, declined to comment on the threats or on any action the court has taken.

“The right forum for this discussion is before the judges, as there is a limit to what the OTP can publicly say about witness issues to the media,” an OTP spokesperson wrote in an email to IWPR. “We will continue to work together with the victims and witnesses unit in the registry to address this [witness interference].We will continue to seek authorisation from the judges for additional protective measures, as needed.”

The spokesperson added, “We appreciate the sacrifices that witnesses make for the sake of truth, and we will continue to do all we can to keep our witnesses safe.”

The latest threats come after ICC prosecutors and a number of human rights organisations expressed concerns over the Kenyan government’s apparent unwillingness either to investigate or to halt witness intimidation. (See Kenya Witnesses Face Harassment.)

Last month, two witnesses decided to retract their evidence in the ICC case against Kenyatta.

In March, the prosecutor was forced to drop charges against a fourth suspect, former civil service head Francis Muthaura, after a witness admitted to being bribed.

At the time, Prosecutor Fatou Bensouda said that other witnesses were now dead, and she has repeatedly spoken of “unprecedented levels” of witness interference in the Kenyan cases.

Bensouda has called on the government and all Kenyans to work together to put an end to the climate of fear surrounding those associated with the ICC.

However, at an IWPR event held in Nairobi in May, Kenya’s attorney general, Githu Muigai, insisted that he was unable to provide protection to witnesses because he had not been informed of their identities.

“I am guilty of not protecting witnesses whose names I will not be given because they are not safe with me, but I am guilty of not protecting them in any event,” Muigai said at the May event. “How more ridiculous could that be?”

Advocacy groups such as the New York-based Human Rights Watch, HRW, have also urged the Kenyan government to act.

Elizabeth Evenson, senior counsel for HRW, says the Kenyan government has a fundamental responsibility to help protect the safety of all the witnesses within its borders. According to her, this includes investigating harassment or threats amounting to violations of national law.

“We have called on the new government to make a public statement regarding its commitment to take steps, including investigating threats, to help ensure the security of those assisting justice processes,” Evenson told IWPR. “This would send an important message that any effort to interfere with ICC or other witnesses would be met by the government's action. So far, I am not aware whether the new government has made any statements along these lines.”

Local advocacy groups in Kenya have also raised concerns about threats aimed at individuals associated, directly or indirectly, with the ICC.

Ndungu Wainaina, executive director of the International Centre for Policy and Conflict in Nairobi, says Kenya’s Director of Public Prosecutions, DPP, must take steps to ensure those who support human rights and the ICC justice process are not intimidated.

"The DPP's office must further ensure human rights defenders in the country carry out their legitimate human rights work without fear of reprisals and free of all restrictions, in line with the country’s international and domestic obligations to protect and fulfil human rights," he said.

The DDP, Keriako Tobiko, did not respond to an email seeking comment on the matter.

Luka Sawe, a lawyer with Ucas Sawe and Co. Advocates in Nairobi, believes that the fact that witnesses have continued to withdraw from proceedings is proof enough of the government’s unwillingness to act on allegations of harassment and threats.

“The government is intentionally going slow over the matter,” he said.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.