Post-poll violence: The great conspiracy

By David Ohito

A key report by Government insiders for the first time unmasks how deep the conspiracy against the prosecution of post-election violence suspects was.

Written for and on the orders of the Attorney General, it reads like an organised attack on justice for victims of 2008’s violence. It is also
an eye-opener as to why the State has failed to prosecute post-election crime suspects. Its findings are an indictment of President Kibaki and Prime minister Raila Odinga, who undertook to fight the impunity the violence represented during the February 2008 deal that created the Grand Coalition Government.

A scene in Kibera, Nairobi during post-election violence. [PHOTO: FILE/STANDARD]

Worse still, the report reveals that cases involving murder may be impossible to unravel as inquest files opened on the deaths were far from complete more than 12 months later.

"The inquest files opened in all the affected provinces were far from complete in as far as investigations were concerned," the report seen by The Standard says.

It also brings to surface the improbability of achieving justice for the victims because of the admission the bulk of the investigative materials and evidence are in the hands of the police, which on its own, is accused of 400 killings.

More than 1,200 people were killed in weeks of violence, hundreds of thousands displaced and others injured, maimed or raped. Property worth billions of shillings was destroyed.

Cold reception

Leafing through the report by a group of Government lawyers reporting to the AG, dubbed Team on Review of Post-Election Violence-Related Cases, may help explain why key personalities in Government gave International Criminal Court Chief Prosecutor Luis Moreno-Ocampo a cold reception when he flew over.

It also explains why Government has not been so keen on a local mechanism meeting prescribed international standards to try minor offenders as those deemed to hold higher responsibility are surrendered to ICC’s fate. It is an unsettling indicator there might be no justice for victims, at least not from the Kenya Government.

Cabinet proposed trying post-election crimes in the local court system mid-last year after failing to rally Parliament’s support for a Special Tribunal. Ministers have been divided on the matter with three to five thought to be key suspects in planned trials.

Grim picture

The report paints a grim picture of whether Kenya will be able to face and break the cycle of impunity by punishing perpetrators of a cycle of election-related violence that began in 1992.

It exposes how the Government lacks the capacity, will and commitment to handle the investigation and prosecution of sensitive crimes committed during country’s worst violence since Independence.

The mandate of the team appointed by Attorney General Amos Wako was to undertake a nationwide review of cases related to Kenya’s post-election violence and isolate them and determine if there was sufficient evidence in support of charges preferred.

But the verdict delivered by high profile officers in the AG’s office and law enforcement ranks, mainly the Criminal Investigation Department, shows little ground has been covered. Mr Patrick Gumo, Assistant Director of Public Prosecution, led the team from AG’s office while Mr Francis Okonya, now Deputy Commissioner of Police, led the CID group.

They compiled the report under the stewardship of Director of Public Prosecutions Mr Keriako Tobiko.

The report shows that in Rift Valley Province, the team forwarded 504 cases to Wako who ordered 42 of them be tried to logical conclusion, while 46 involving 196 accused persons were withdrawn.

In Western Province, 23 files involving 51 accused persons were forwarded to the AG who decided 16 proceed and seven files be closed for lack of evidence.

In Nyanza, 21 files involved 42 people were forwarded to Wako where he directed that 11 cases proceed and 18 "be closed due to lack of evidence".

Available files

In Central Province, only two files were made available to the team to peruse, including one for an accused person and the death inquest of late George Odhiambo. Wako ordered that the cases be investigated and submitted to him afresh.

Eastern Province had no case of post-election violence reported. In Nairobi the police and CID curiously failed to submit files. It was not immediately clear why yet its top officers served in the team.

However, the report mentions complaints about the short period of time used to compile the cases.

In the Coast, six files were perused involving 79 people. Another 19 inquest files and five for inquiry were examined. They were all before court.

But according to the 400-page report, critically worrying is the fate of evidence that was to be collected by police officers but statements by witnesses who were Internally Displaced People were not pursued.

Another six-million-dollar question the report raises is how the inquests into deaths allegedly committed by police officers would be investigated when the investigative authority lies with the Force.

The Waki Commission concluded police killed at least 400 people since there was no evidence their gunshot wounds were caused by civilians.

The report, prepared in February last year, notes that Police were overwhelmed by the number of cases reported to them leading to backlog of cases. The review in seven provinces was confronted with immense challenges on how to move ahead with the cases. It delivers a damning indictment of the police.

"Police failed to avail files in time to the AG’s office to commence prosecutions," it reads. It also exposed shoddy investigations by police and duplication of efforts.

Lawyer Paul Muite argues the report confirms the State was unwilling to deal decisively with the crimes committed after the disputed presidential election.

"The major suspects and actors in the post-election violence are the same people wielding power. How can they investigate themselves?" Muite asked. The report concedes the Department of Public Prosecutions was ill-equipped and lacks even basic infrastructure like Internet facilities, photocopiers, laptops and computers to fast track the cases before it.

Instructions

The team recommended the Commissioner of Police concludes pending cases that required investigation within a specific time frame. It was not immediately clear which cases had been acted on following Wako’s instructions.

The Waki Report indicted the State security agencies for failing to act decisively during the 2007-2008 violence.

As regards the conduct of State security agencies, it concludes they failed institutionally to anticipate, prepare for, and contain the violence. The Waki Report said individual members of the State Security Agencies were also guilty of acts of violence and gross violations of the human rights of the citizens.

Like the Waki Report, DPP says the post-election violence was also the story of lack of preparedness of, and poor coordination among different state security agencies.

The Waki team recommended a Special Tribunal with the mandate to prosecute crimes committed as a result of post-election violence would resolve the matter.

Attempts to create one have failed after Parliament frustrated all efforts to do so.