Protect human rights defenders in criminal investigations

Months of diplomatic wrangling ended last month with the decision that the International Criminal Court (ICC) will now open an investigation into the post-election violence that rocked Kenya in 2007-08. An advance team has already started laying the groundwork in Kenya and the ICC prosecutor will start the formal investigations this month. Now that he has been authorised to investigate the violence, Luis Moreno-Ocampo has said he will try for an expeditious investigation with a focus on those most responsible. He has also spoken of witness protection and the duty of both the ICC and the Kenyan government to protect them.

There is, of course, cause for more than concern when it comes to the safety of witnesses in Kenya. There have been all-too-frequent reports of witnesses to the Waki Commission, and those who have simply reported crimes to the police, being threatened. Numerous people have left the country, too afraid for their own lives and the safety of their families to stay in Kenya. The killing of a witness’ cousin was reported earlier this year. And while parliament has recently passed amendments to the Witness Protection Act, they have not yet begun to fix the inadequate protection program. The debate over who can and should protect witnesses who give evidence in the course of Moreno-Ocampo’s investigation and possible prosecutions fails to consider another, vital group of citizens who will be involved in this process – human rights defenders.

Kenya has already seen the slaying of two such citizens: Oscar Kamau Kingara, of the Oscar Foundation Free Legal Aid Clinic, and his colleague John Paul Oulo in March 2009. The clinic had published reports on police violence and abuses, and those men had cooperated with Philip Alston, the UN special rapporteur on extrajudicial, summary or arbitrary executions during his ten-day investigation in Kenya. There can be little doubt that their deaths were linked to the information and allegations they had published, and the assistance that they had provided to Alston.

With the impending investigation of the ICC, however, the stakes are much higher for some in power than when the special rapporteur visited Kenya in early 2009. It is clear that the prosecutor believes he will be able to collect sufficient evidence against a number of people to prosecute at least two cases. What will be a vital part of the ICC investigation – as it was also for the special rapporteur – is the assistance of human rights defenders and their organisations.

Many people do not report the simplest of crimes or seek the assistance of police in Kenya – distrust and fear runs deep. Add to this the involvement of police in the post-election violence and it is not surprising that the country’s human rights institutions are some of the main repositories of complaints, witness details and other evidence. The team from the ICC has already said it will meet with organisations such as the Kenya National Commission on Human Rights and the Kenya Human Rights Commission during the course of investigations. With no arrest for the murders of the two men during the special rapporteur’s investigation, and other human rights defenders having left the country, who then, will ensure that the people who speak out this time are protected?

The definition of a witness in Kenyan law – including in the bill that is currently awaiting presidential assent – extends only to cover those persons required to give evidence before a court, tribunal or commission. There is also provision to protect persons related to witnesses, those who might be in need of protection because of the evidence given by a witness and any other person who may require protection for reasons seen as sufficient by the director of the Witness Protection Agency, countenanced in the new bill. Yet this is clearly not enough to even seek to cover in law those persons who are not witnesses but rather assist witnesses and the investigators.

The mechanisms of the ICC are also insufficient to protect human rights defenders. The court has a unit devoted to the needs and protection of victims and witnesses but it states that the protection of people such as human rights defenders is the responsibility of the state. In the case of Kenya this is something that the government has, thus far, absolutely failed to do. Even if the current bill becomes law immediately, new procedures and processes take time to become properly established – and the ICC team has landed in Kenya.

The authorities need to start the process of full and proper protection of both witnesses and human rights defenders now. Regardless of the status of the bill, the government should publicly state its commitment to the ICC investigation in general, as well as to the specific issue of protection. Those in power need to publicly declare that intimidation, threats and harm to those who assist the investigation will not be tolerated. Words, then, need to be supported by action – the government needs to put its support behind the human rights organisations, as well as the ICC team. Reports note that security has been established for Moreno-Ocampo and his team as they travel throughout Kenya, but it is not apparent that this is for the protection of both the investigators and those citizens who assist them. Finally, in the event that there are reports of harassment or threats as the ICC process unfolds, there needs to be swift and decisive action by way of proper investigation and consequences for those found to have interfered with the law.

In this investigation the human rights defenders of Kenya will likely be essential intermediaries; without the information they have from their own investigations and the assistance they provide to witnesses, Moreno-Ocampo’s task will be much more difficult, if not impossible. Human rights defenders should not be silenced, nor should they be left to face the threats, intimidation and danger that could follow.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Tennille Duffy is the programme officer for Access to Justice (East Africa), Commonwealth Human Rights Initiative.
* Please send comments to [email protected] or comment online at Pambazuka News.

EDITOR’S NOTE

At the time of publication, the sudden death of Simon Gatiba Karanja, director of the Criminal Investigation Department (CID), on 9 May is reported to have been caused naturally. The autopsy was conducted by Moses Njue, the government chief pathologist, but documentary results have not been made public. The Standard reported Gatiba Karanja was in good health prior to his death early on Sunday. It was denied Gatiba Karanja had met with Prosecutor Luis Moreno-Ocampo. That a meeting was in line with the CID boss was also denied by Moreno-Ocampo at a press conference in Nairobi on 12 May.