Kenya Trial Moves Behind Closed Doors

Proceedings in the trial of Kenya’s deputy president, William Ruto, at the International Criminal Court (ICC) have been forced into closed session after photos and claims about the identity of a protected witness were circulated online.

The prosecution’s first witness had testified on September 17, in open session but with protective measures in place. In the courtroom, she was shielded from public view by a curtain and her testimony was broadcast with image and voice distortion to conceal her identity.

But even as the witness gave her testimony, photos and claims about her identity surfaced on Kenyan blogs and social media sites, prompting fears for her safety.

Judges responded with a stark warning to the media and the general public against publishing any information relating to protected witnesses.

Presiding Judge Chile Eboe-Osuji said journalists, bloggers and social media users could be held criminally responsible at the ICC if they were found to have spread information that might be used to identify protected witnesses.

“Any revelation of the identity of a witness whose identity has been protected by this court amounts to an offence,” Judge Eboe-Osuji said. “So too will any attempt to engage in any such revelation.”

He called on the public “to desist from doing anything that would reveal or attempt to reveal the identity of protected witnesses or to engage in secondary dissemination of such wrongful and illegal information”.

Ruto is standing trial at the ICC alongside a former journalist, Joshua Arap Sang, for orchestrating attacks in Kenya’s Rift Valley region in the aftermath of a disputed presidential election in December 2007.

Political unrest over the election result quickly took on ethnic dimensions, causing large parts of the country to be engulfed by violence.

Both defendants face charges of murder, persecution and forcible population transfer after more than 1,100 people lost their lives and 650,000 others were forced to flee their homes in the unrest.

In the Rift Valley, Ruto’s Orange Democratic Movement (ODM) was largely backed by members of the Kalenjin ethnic group in the 2007 election. Ethnic Kikuyus voted mainly for the Party of National Unity, which was declared the winner with its leader Mwai Kibaki elected president.

Prosecutors allege that in an effort to grab political power for the ODM, Ruto “gathered together an army of loyal Kalenjin youth to go to war for him”.

Following the judges’ warning about protected witnesses, prosecutors requested that the witness’s testimony be heard in private. Although the request was vehemently opposed by both defence teams, the judges agreed, and ordered the court to sit in private session for the rest of her testimony.

Earlier this week, the witness, referred to only by the number 536, described the burning of a church in the Rift Valley village of Kiambaa on New Year’s Day 2008.

The witness was among a group of people trapped inside the burning church in Rift Valley. Up to 35 people died.

She said hundreds of Kikuyus took shelter in the church in Kiambaa, after groups of Kalenjin youths torched people’s houses in nearby villages.

According to the witness, on the morning of January 1 2008, approximately 3,000 young Kalenjin men, their faces painted with white clay, converged on the church carrying traditional weapons, axes and sticks.

“The way they spoke Swahili made it easy to identify that they were Kalenjin,” she told the court.

The witness said that from inside the church, she saw a man with a blue plastic jerry-can containing petrol, which was used to set the church ablaze. The attackers took mattresses lying outside the church, put them up against the walls and set them on fire, she said.

The witness then explained that “young Kalenjin people” prevented those taking shelter in the church from escaping. She said they guarded the side door and barricaded the entrance with bicycles left in the foyer by those who had sought refuge inside.

“When someone would try to leave the church, they would grab the person and push them back in,” the witness said.

Large parts of the witness’s testimony were held in private session to prevent members of the public hearing information that might identify her.

In her testimony, the witness identified various individuals at the scene who are said, in prosecution’s pre-trial brief, to have played a role in the attack. The witness referred to individuals named Emmanuel Bor, Kimei Bor, and another she called “Brown”.

According to the witness, Emmanuel Bor had ordered that women and children should be allowed to leave the church, but when the witness herself escaped, she found out this had not happened.

“When I left the church and when I was told that the children had been put back in, I just became mad,” the witness told the court.

She then described further attacks that she witnessed after escaping the fire, including the rape of a woman she knew.

“She was taken by her legs, one leg on one side and another on the other side, she was raped,” the witness told the court. “I saw it with my own eyes. It was the first time in my life that I had seen a rape happen.”

After witnessing the rape of her friend, the witness described an incident involving a group of “young people” who had placed a roadblock at the crossroads. This group summoned a local elder. "He went towards them, and when he went he was struck with an axe on his neck. Afterwards he was injured with spears,” she said.

Asked by the prosecution whether she knew any of the man’s attackers, the witness recalled that “the first person to strike him was Brown”.

She then described an attack on her brother, who had been hiding behind a fence near the church. According to the witness, he was hit by an arrow and fell to the ground.

“Brown shoved my brother at me and said, ‘take your trash away’”, the witness recalled.

“He was in a bad way, because he took a few steps and then he fell to the ground. Someone had shot an arrow at him and it was lodged in the nape of his neck, in the throat. You see his head and his neck were nearly separated.”

The witness described how she then took off all her clothes to reenact an old Kalenjin custom as a way of helping her brother.

“I decided to stand there naked first of all in the Kalenjin custom, or way of doing things. When a woman takes off her clothes it is like a curse,” she said.” My purpose was to save my brother’s life.”

The witness said that with the help of a Kalenjin passer-by, she managed to transport her brother to hospital in a pick-up truck.

Besides her account of the horrific events in Kiambaa, the witness also told judges how Kalenjin youths threatened her in the run-up to election day on December 27, 2007.

“Those youth threatened me,” she told the court, referring to some young people with whom she used to work. “They told me that if we did not vote for the ODM we would face the consequences.”

Ruto was in court this week to hear this account from the witness. The ICC’s appeals chamber has yet to rule on his request to be allowed to miss certain proceedings and remain in Kenya.

The judges interrupted the witness’s evidence on September 18, in order to hear arguments from both prosecution and defence about the impact of a motion passed by Kenya’s parliament to withdraw from the ICC.

The judges were particularly keen to hear whether the development would have any impact on the protection of witnesses in the case.

Anton Steynberg, for the prosecution, said that witnesses had informed his office that they felt their safety was at greater risk since the motion was passed. He asked judges to increase protection measures for all witnesses, rather than assessing each one on a case-by-case basis.

Steynberg spoke of a “culture of intimidation” towards the ICC in Kenya that “now seems [to have] reached the highest echelons of the Kenyan parliament”.

Lawyers representing Ruto and Sang strongly opposed the prosecution’s efforts to increase protective measures for witnesses.

Karim Khan, who represents Ruto, sought to downplay the possibility of a greater level of threat against those who will give evidence. He noted that the motion passed by parliament highlighted the fact that the Kenyan government is still obliged to cooperate with the ICC in the ongoing cases.

He also said that it was his client’s right to have the “lies” presented by the prosecution heard in public.

He told judges that despite the move by parliament, Kenya as a country was not opposed to the ICC.

“The deputy president sits behind me, not coercively but because he believes in the rule of law,” Khan said. “The court has to look at the rights of William Ruto.”

JJ Wangui is an IWPR reporter in Nairobi.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM.