The judge ruled that there was no evidence they had intended to rape the victim. In the only other conviction Human Rights Watch identified for robbery with violence, the crime in question was less serious than many that took place during the post-election violence. Willy Kipngeno Rotich and seven other men were convicted of robbing cash and other property from a victim in Sotik, while threatening to use violence. The suspects were known to the complainant and his wife, and were arrested immediately after the incident.
Human Rights Watch was unable to ascertain their sentence based on the court file. According to a police prosecutor interviewed by Human Rights Watch, in Nakuru, Peter Ochieng, a Luo, was convicted of grievous harm and sentenced to ten years imprisonment. He was accused of setting fire to his wife, a Kikuyu, during the post-election violence. His wife survived the attack. Few significant post-election violence cases remain pending before the courts. Human Rights Watch was able to identify two pending murder cases related to the post-election violence, one pending inquest, and one pending rape case, although there may be other pending cases in jurisdictions where Human Rights Watch did not conduct research.
Republic v. The suspect was charged with being part of a mob that stoned to death Zezia Wangui Karanja, an elderly Kikuyu woman, on January 28, A murder case in Timbaroa, Republic v. Peter Kepkemboi , also remains pending. The prosecution finished its case in October and was awaiting a ruling, due November 25, on whether the defense has a case to answer. The prosecutor spoke highly of the police investigations into this case, including their role in seeking an order to exhume the body, which had been buried without a post-mortem.
In Molo, there is a pending inquest into the killing of Nahashon Mburu, who was killed with an axe on January 9, , an incident that triggered a series of further killings in Molo. Four eyewitnesses have testified in court that the man wielding the axe was Thomas Belsoi. Another murder case included in the Department of Public Prosecutions list is Republic v.
Were was the first leading politician to die amid the post-election violence, and ODM immediately called the killing a political assassination. A rape case, Republic v. Paul Muigai Mwihia , was also pending as of this writing. Mwihia was charged with being part of a group that gang raped a woman in Nakuru district and assaulted her husband with machetes during the election violence. The investigation and credible prosecution of crimes committed during mass atrocity poses challenges for any jurisdiction.
The judicial system may be overwhelmed by the number of crimes. It may lack specialized laws and expertise to deal with international crimes or even serious ordinary crimes committed on a mass scale. And the political will to address these challenges and bring to justice those responsible for mass atrocity is often lacking. Human Rights Watch examined 76 cases brought before Kenyan courts, including the majority of the serious cases listed in the March Department of Public Prosecutions report, as well as a few cases not in the report for which initial information was provided by other sources.
At least 20 of those cases sourced from the report were clearly not related to the post-election violence; for another nine, any relation to the post-election violence was unclear from information available to Human Rights Watch. Five were pending before the courts as of November Only eight had resulted in convictions.
These files encompass the majority of serious crimes listed within the March Department of Public Prosecutions report, as well as several petty crimes, including stealing and incitement to violence. Human Rights Watch researchers consulted the case files and interviewed lawyers, judges, police officers, and Kenyan civil society activists familiar with the cases.
Researchers also interviewed dozens of other victims whose cases stalled at the police investigations stage, never reaching the courts. These include poor police investigations, inaccurate or incomplete qualification of charges, an ailing police prosecutorial system, and overburdened state counsel. Many of these problems are not unique to the investigation and prosecution of post-election violence; they inhibit access to justice for a broad spectrum of crimes.
Some of these issues are being addressed by a series of reforms driven by the National Accord and Reconciliation Act and the new constitution, while others remain unaddressed. Poor investigations were the principal explanation cited by interlocutors as to why post-election violence cases failed to advance. Problems with police investigations often began the moment that victims filed complaints.
Where police arrested suspects, they often conducted no further investigations to seek witnesses. This is particularly acute in areas where police are perceived as a branch of the ruling party. People are used to being in the opposition, and they receive government officials negatively. Human Rights Watch spoke to some victims who believed that police failed to investigate cases because they were not impartial. They had ethnic solidarity with the accused. One victim told Human Rights Watch that he was threatened with a hammer by a Mungiki member, known to him by name, in Njoro.
After he reported the incident at the Njoro police station, he said, he learned from friends that the police had informed the Mungiki member of the complaint, without taking action to investigate it. You take someone to court and then he comes back to threaten you. Human Rights Watch also found cases in which police appeared to conduct minimum investigations.
Although the trial took place a year after violence subsided, police never went back to carry out further arrests. In the absence of a complaint, police were particularly negligent in their duty to carry out assiduous investigations even if an obvious crime had been committed. One police official told Human Rights Watch that the police needed official complaints in order to open investigations and could not rely on the Waki report, reflecting an inaccurate understanding of police responsibilities. In other cases the police simply appear incompetent. Even in fairly simple theft cases related to the election violence, police often failed to compile sufficient proof.
In a theft case in Mombasa, a witness told the Waki Commission that although he provided police with video footage showing identifiable individuals looting his shops, the suspects were never arrested. One police officer told Human Rights Watch that poor investigations were often the result of a lack of resources, such as dedicated vehicles for investigators.
Currently, all DNA testing is done at the government chemist, an office which lacks trained personnel and technical equipment and is plagued by backlogs. In at least one arson case, prosecution could not proceed because police never turned over their investigation file to the prosecutor.
Police are responsible for filing charges against suspects, which requires knowledge of the criminal code. It also entails a strategy of listing less serious charges to fall back on in case the evidence is insufficient to win a conviction on the most serious charges. Unfortunately, many in the police are not up to the task, in part because of inadequate training.
Sometimes the police lay the wrong charge and the court dismisses the case. Police are supposed to put alternative charges for every case. We try to train investigators on this. Investigators are trained, but it may not be enough. In some cases, the charges filed were insufficient given the gravity of the crime.
Another problem in the filing of charges is that charges were sometimes only brought against one alleged perpetrator, even when witnesses named multiple suspects. In a robbery with violence case in Kericho, Charles Kipkumi Chepkwony was convicted in on charges of attacking Wilson Soi Wanyama in But another suspect named by at least two witnesses was not arrested, and as far as can be ascertained from court records, police prosecutors never requested a warrant for his arrest.
Local human rights organizations told Human Rights Watch that they suspected police made little effort to arrest these suspects, some of whom made themselves scarce in , just after committing acts of violence, but many of whom may have since returned to their homes. The police prosecutorial system in Kenya constitutes a major obstacle to justice. As of June Kenya had only 83 civilian prosecutors nationwide, compared to police prosecutors. The effect is inadequate representation of complainants.
In court, police prosecutors often fail to present the evidence required to prove a charge beyond a reasonable doubt. Human Rights Watch found several cases, including cases of serious crimes such as assault, in which police prosecutors failed to secure the presence of key witnesses—including fellow police officers—in court. In Kericho, a suspect was acquitted of malicious damage to a house because a police inspector who took photos of the damaged house testified in court that he had taken the photos on January 28, while the victim testified that the damage did not occur until February 9.
State counsel have a much higher level of training than their counterparts in the police prosecution service. However, like police prosecutors, they do not have the time or resources to carry out their own investigations, relying exclusively on the police file which is an obstacle to justice.
Director of Public Prosecutions Tobiko told Human Rights Watch he has requested additional funding for the chronically underfunded State Law Office, and is awaiting a response. The major hindrance is political. They want the police to remain as it is so that they can get away with things. The lack of a functioning witness protection system is a fundamental obstacle in the search for justice for post-election violence. Given the number of suspected perpetrators who occupy influential positions in the state apparatus, including police and politicians, witnesses have a reasonable fear of repercussions for giving testimony.
Since , Kenya has made progress in developing legislation on witness protection, but the legislation has not translated into action. The law is well crafted, and the agency it proposes has far-reaching powers. But the government has allocated only a fraction of the funding requested by the agency, not even enough to cover basic operations. Only the government can put it into effect, but the government is guilty as hell. There is a deliberate attempt to cushion some people who are high up—so the government may keep delaying implementation of this act. In order to address post-election violence within the Kenyan judicial system, funding the Witness Protection Agency is an obvious priority.
Absent a credible witness protection program, many victims and witnesses fear repercussions for testifying in post-election violence cases. Potential witnesses were concerned not only for their physical security but also for their economic security. As defense counsel, we were getting threats from the security forces.
There was pressure at the national level for convictions, and pressure at the local level for acquittals. In various locations, political pressure led police to free suspects. Those councilors were arrested and taken to court, but later released. The failure to successfully prosecute a single one of the many local politicians suspected of being involved in the violence is also indicative of political pressure. There was no shortage of accusations against local political power brokers of both parties following the violence.
Most such well-protected individuals were never investigated or arrested. Kericho area residents told Human Rights Watch that a then district commissioner of a nearby district himself shot and killed several young men who were protesting, but that there were no investigations into his alleged role in the killings. In the rare cases in which local politicians were arrested, such as Farouk Kibet in Eldoret and David Manyara in Nakuru, they were promptly released.
Manyara, a former MP, was arrested on April 19, , alongside prominent businessman Zakayo Maina, and accused of sponsoring Mungiki activities during the violence. When their lawyers indicated they would object in court to the detention of their clients without sufficient evidence, Manyara and Maina were freed, after two days in custody.
Political pressure in addressing the post-election violence played out on a scale larger than that of individual cases. The attorney general had the authority to require police to carry out investigations into any alleged offense. He also had the authority to withdraw any prosecution initiated by police, a provincial state law office, or private citizens, in a motion known as a nolle prosequi , and was not required to provide any explanation. This power, in the hands of a political appointee, was easily abused to protect impunity.
Closing the gaps
Indeed, Wako, who served from to , has a long history of withdrawing cases against politically powerful individuals. In mid, Wako ordered the withdrawal of dozens of post-election violence cases, without any explanation. Most cases involved suspects who were in custody, and most alleged perpetrators were Kalenjin or Luo. Many were for minor crimes that did not involve physical violence against other persons, such as rioting or looting, but more serious cases, including at least one robbery with violence case, were also among those withdrawn.
According to a Kericho lawyer, the cases were withdrawn not for lack of evidence, but for political reasons, including a PNU decision to extend an olive branch to ODM in the name of national reconciliation. Those interviewed by Human Rights Watch on the lack of convictions for election violence were less likely to fault the judiciary than they were to fault police investigators and prosecutors. However, the judiciary is not exempt from criticism in its handling of certain cases. In an Eldoret stealing case, a magistrate acquitted a suspect simply because the two eyewitnesses provided different dates in their testimony as to when the theft took place.
The acquittal reflects the poor preparation of cases by police prosecutors, but that alone should not necessarily have resulted in an acquittal; the magistrate could have sought clarification as to the date from the witnesses or the prosecutor. Even where evidence presented by police or state counsel was insufficient, the courts rarely, if ever, exercised their prerogative to order further investigations.
But he did not summon any perpetrators mentioned by witnesses who had not already been arrested, or any additional witnesses who might shed light on the issue. In a Nakuru murder case, Republic v.
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Bernard Kibet Bii, Matthew Kipsang Chirchir, and Kennedy Sayayo Rungera , a judge dismissed the charges when the witnesses failed to appear in court on the second hearing date. The judge also did not take into account the difficulty of securing transport for witnesses, particularly in the immediate aftermath of the post-election violence, when hundreds of thousands of Kenyans were displaced. According to the lawyer, the case should be reopened and earnest efforts undertaken to seek the witnesses.
Similarly, a judge in Naivasha acquitted the suspect in an attempted rape case because after three adjournments, the police file had not been presented in court. There was no evidence in the file to suggest that the judge had summoned the investigating officer or his or her immediate superior to determine the whereabouts of the file. Their allegations point to a need for further investigations as to the role of corruption in post-election violence cases, and its role in the criminal justice system more generally.
Kenya ratified the Rome Statute in But at the time of the post-election violence in , ICC crimes—that is, crimes of genocide, war crimes, and crimes against humanity—had not yet been criminalized in national legislation, and therefore could not be prosecuted as such in Kenyan courts. One of the more positive developments to emerge from debate around the creation of a special tribunal was the passage of the International Crimes Act ICA , , which made these ICC crimes triable offenses in Kenya. The ICA explicitly integrates into Kenyan law provisions of the Rome Statute related to command responsibility, a principle by which those in a position of authority who should have known of crimes committed by those under their command, and who failed to prevent these crimes or ensure their prosecution, are themselves criminally liable.
The act came into operation on January 1, The Kenyan constitution at the time prohibited in section 77 4 the retrospective application of criminal law, meaning no person could be convicted for conduct that did not constitute a crime at the time it was committed, known as the principle of nullum crimen. It is unclear whether this would have prohibited use of the International Crimes Act, however, given that ICC crimes were clearly crimes under international law, if not under national law, during the post-election violence period.
This would appear to clear the way for use of the International Crimes Act now to prosecute crimes against humanity or other ICC crimes dating to the post-election violence period. But the absence of these crimes in national law over the course of coincided with the most concerted efforts to bring accountability. This deprived police and prosecutors of a key tool, particularly with regard to investigation of high-level perpetrators. Even as of , most police investigators and prosecutors have received no training on the International Crimes Act, inhibiting their ability to make use of it in newly filed cases.
Serious crimes committed during mass atrocity may be tried as ordinary crimes, for example, by bringing multiple charges of murder or rape. But this often does not adequately capture the conduct and level of responsibility of those involved in their commission. Large-scale rights violations are generally characterized by a division of labor between planners and implementers, as well as a structure designed to make connections between these two levels difficult to pinpoint. Failure to do so can lead to impunity for those most responsible at the top. During the post-election violence police fatally shot at least people.
Shootings by police took place throughout Kenya in areas viewed as ODM strongholds, including in Eldoret and surrounding towns in the North Rift; Kericho and surrounding towns in the South Rift; throughout Nyanza and Western provinces; in Mombasa town; and in informal settlements in Nairobi. Most shootings were unlawful under both Kenyan and international law. Many victims filed complaints with the police after shootings, while others, reluctant to complain to the same institution that was perpetrating abuses, took their complaints to local administrative officials, members of parliament, NGOs, or others whom they thought could assist them in accessing justice.
A lawyer in Kericho, where most police shooting victims were Kalenjin, explained to Human Rights Watch that after police fired on unarmed protestors, killing at least seven, few were willing to file complaints. Difficulty in accessing justice for police shootings began as soon as victims attempted to file complaints. The problem was also documented by the Waki Commission. In Kisumu, Daniel Ishuga Indimuli attempted to file a report after police shot two of his children, including an year-old girl. Ishuga waited two years, and then returned to the police in when he learned that neighbors had received compensation for their losses.
He explained that his children had been killed by police, on two separate occasions during the post-election violence, and that further, his properties had been looted by mobs of civilians. Also in Kisumu, police shot year-old Michael Otieno in the leg during protests on January When he was finally discharged from hospital two years later, he attempted to make a police report. According to Otieno,. Gregory Ngoche was shot by police while sitting in his yard on January Protests were underway in the street outside and he was hit by what he believes was a stray bullet.
In Sotik, such stories were also common. One man, shot in the arm during the violence by a police officer whom he recognized, tried to file a complaint at three different area police stations. Finally, he was able to record a statement. Police later told him that the inspector who shot him had been transferred. The inspector was never arrested or charged with the shooting. Many victims of rape at the hands of the police reported police failure to take their statements. Even where police did receive written statements from victims of police shootings, they did not appear to undertake any subsequent investigations.
In Vihiga, Western province, one woman heard from witnesses that a female police officer in Mbale had shot her husband six times in the head and neck. They wrote it down. The OCS [in Mbale] was there when we gave the report. Police made no efforts to ensure that hospitals treating gunshot victims systematically preserved bullets, which would have allowed for ballistics examination on a wide scale.
Most victims interviewed by Human Rights Watch said that police and hospital personnel never explained to them the benefits of guarding bullets that were removed from their bodies, or from the bodies of their family members. Due to public pressure following the televised shootings of George William Onyango and Isaiah Chacha in Kisumu, police established a committee to carry out an inquiry into excessive use of force by police during the post-election violence.
Police spokesperson Kiraithe told Human Rights Watch in February that police had opened investigations into the conduct of officers. Human Rights Watch found no evidence of election violence-related court cases against police, with the exception of Kirui. Some semblance of an internal investigation took place in Kisumu. WKLS met with them, but we never saw them again and just got stonewalling from the [Provincial Criminal Investigations Officer] when we asked about their findings.
It was not a serious investigation; it was a reaction to public outrage. Other lawyers in Kisumu, who represented dozens of victims of police shootings, expressed surprise that they were never contacted by the police, given that they could have availed witnesses to provide testimony regarding police behavior. Beyond Kisumu, most of the police officers interviewed by Human Rights Watch were themselves unaware of any internal investigation.
In Western, no one came around to interview police about who used excessive force. The glaring absence of investigations into police shootings is not surprising. Until the passage of a new law in November , which has not yet been implemented, Kenya had no measures in place to ensure police oversight, nor provisions to permit civilian prosecutors to conduct their own investigations into crimes attributed to police officers.
In the absence of an oversight mechanism, police accountability has always been elusive in Kenya. Interviewed by Human Right Watch, the police found numerous justifications for the lack of accountability. This officer recognized that an oversight mechanism would be a positive step forward in countering police impunity.
The failure to investigate police shootings also derives from the fact that particular officers suspected of unlawful use of force were sometimes highly influential. A witness saw Mwangi fire on a pickup truck that was carrying a group of youths. According to the witness,. The victim was 25 year old Muzamil Abubakar Kato.
In the same incident, another man was shot in the hand—also by Mwangi, according to a witness—and lost his thumb. Representatives of a Kenyan NGO went to the provincial police headquarters in September and attempted to file a complaint on behalf of the victims, but they were told by a police official that he could not record a statement against a fellow officer of the same or higher rank. Other officers cited by victims and witnesses were mid-level commanders who may wield significant influence within the force.
Courts in both Nairobi and Kisumu, confronted with overwhelming evidence that police were responsible for unjustified use of force, ruled in favor of the plaintiffs in at least 19 such cases, resulting in material awards. But the government has refused to pay up. The attorney general should, in turn, advise the office of the president of the obligation to pay compensation. But Section 21 of the Government Proceedings Act suggests courts can take no further action to enforce judgments against the government. The failure to pay reflects a blatant refusal to provide justice to post-election violence victims and demonstrates the extent of impunity in Kenya.
Police from Kilimani Police Station shot Ogenche on December 29, , as he returned to his house from a public toilet. He is now a paraplegic. The High Court of Kenya in Nairobi found the government liable for the near-fatal shooting. An occasional laborer who washed cars for a living, Ogenche recognized the vehicle from which he was fired on; he had washed it on several occasions.
A police officer who served as the only defense witness did not contest that police from Kilimani Police Station shot Ogenche. He could not provide evidence that police officials had undertaken investigations to determine which officers were responsible for the shooting. The court awarded Ogenche 5. He continues to suffer pain and is unable to afford basic medication. In Kisumu, victims faced similar situations. One Kisumu lawyer told Human Rights Watch he alone handled 19 election-related cases in which the government had failed to pay court-ordered compensation.
International law imposes upon nations the responsibility to prosecute international crimes and other serious violations of human rights law that amount to criminal acts. Kenya has initiated a series of reforms which, if properly implemented, may address some shortcomings found in the approach to justice for post-election violence over the past four years. But institutional changes alone will not deliver reform. A revolution in political attitudes at the highest levels in the Kenyan government is required.
A lawyer who had won acquittals for his clients in a number of post-election violence cases, asked whether the reforms underway would allow for successful prosecution of post-election violence in the Kenyan courts in the near future, responded skeptically:. Key to improving transparency and accountability in the police is police vetting and the removal of obstructive personnel. Oversight mechanisms, including mechanisms that make it easier for civilians to file complaints about police conduct, are also needed. Some of these reforms are underway.
The former police commissioner was transferred to the Postal Service in September In August parliament passed the National Police Service bill. The bill replaces the Police Commissioner with an Inspector General, who will oversee both the Kenya Police and the Administration Police, previously separate bodies.
The bill also addresses police conduct, including a provision that regulates the use of force. The commission will have a civilian board, including two retired senior officers, and will make appointments, promotions, transfers, and dismissals from the police force.
The commission will be empowered to receive complaints from the public and to recommend remedies or to refer such complaints to the proposed Independent Policing Oversight Authority, the Kenya National Human Rights and Equality Commission, the Director of Public Prosecutions, or the Ethics and Anti-Corruption Commission. The DCI will have its own dedicated staff, a shift from past policy under which any police officer, including those with low rank and little formal education, could investigate complaints.
Police vetting is also planned. Vetting of senior officers was initiated in May with the goal of evaluating professionalism, integrity, track record, and psychological fitness in order to inform decisions on promotion, demotion, redeployment, or dismissal of police officers. The police reforms, if fully implemented, may contribute to accountability for the post-election violence in several ways. First, victims of police violence who were afraid to bring their complaints before the police—as well as those who did file complaints, but received no response—will be able to file complaints before a new, independent, civilian board.
Second, the vetting process should be conducted in a manner that allows for civilian input, with space for citizens to bring forward complaints concerning the behavior of individual officers during the election violence period. Worryingly, the police seem at times unwilling to recognize the need for reform, and closed to external recommendations.
Kenya has made notable progress in judicial reform. The constitution called for the establishment of a Judicial Service Commission, composed of the attorney general, three judges, two advocates, and one person named by the Public Service Commission. In May , following a historically transparent process in which candidates were interviewed on live television, the Judicial Service Commission nominated a new chief justice, Dr.
Willy Mutunga, and deputy chief justice, Nancy Baraza. Both are widely recognized as reformers whose track records suggest a willingness to tackle corruption, political influence, and inertia in the judiciary head-on. A recommended reform was that the director of public prosecutions DPP be made independent of the attorney general. Formerly, the attorney general, a political appointee, had little incentive to pursue cases that could threaten political interests.
Under the new constitution, the DPP is independent, with the power to direct the inspector general of the National Police Service to carry out investigations. However, in violation of the constitution, Kibaki and Odinga set up a closed nomination panel, with Tobiko emerging as the only candidate; this sharp contrast with the transparency around other judicial nominations was criticized from a number of quarters, including by the Justice Minister. Such investigations have not yet been initiated. Further reforms underway include the establishment of a Supreme Court and the vetting of all Kenyan judges.
Other urgent reforms have not yet been initiated. Most important is the recruitment of civilian prosecutors. The DPP has recognized the inadequacy of police prosecutors, and has outlined plans to train and hire more professional civilian prosecutors. If not infused with resources, the State Law Office may also suffer desertions following a call from the judiciary in September for the recruitment of new magistrates; several state counsel told Human Rights Watch they were vying for the more highly-paid positions in the magistracy.
The Kenyan police and judicial system have shown themselves to be unprepared or unwilling to investigate, prosecute, and adjudicate serious election-related crimes. Despite the reforms, it will take at least several years to address the multiple institutional weaknesses that have hindered successful prosecutions. To effectively widen accountability, it will be necessary to establish special mechanisms within the Kenyan judicial system to address cases of post-election violence, using the International Crimes Act and other Kenyan laws.
These special mechanisms—including a dedicated bench or division within the High Court, a special prosecutor or dedicated units within the Directorate of Public Prosecutions, a dedicated unit within the Directorate of Criminal Investigations, and a dedicated cell within the Witness Protection Agency—should feature carefully vetted and recruited Kenyan and international personnel.
For police crimes, including the hundreds of shootings and dozens of rapes by police, a unit within the special investigative team should be specifically empowered to investigate such crimes. Efforts are needed to enhance the expertise among police, prosecutors, and judges required to successfully prosecute international crimes, including substantive knowledge of the Rome Statute, the different modes of liability, and relevant defenses.
Without this expertise the Kenyan judicial system will be left without an important tool for capturing all modes of criminal conduct witnessed during the post-election violence and bringing to account those responsible at the top. The police prosecutorial system remains a serious obstacle to justice. Indeed, once established, the first task of the special prosecutor or prosecutorial team should be to devise a strategy to prioritize cases, to ensure investigations and prosecutions encompass links between the planning of crimes at high levels and the carrying out of crimes locally, and to determine which cases are to be heard through these specially established mechanisms and which cases, if any, can proceed through the ordinary courts.
The investigation and prosecution of post-election violence cases could be centralized. There are additional reasons why prosecution of post-election violence requires an institution with a national strategy. Evidence collected by the Waki Commission and by human rights organizations suggests that in a number of cases, crimes may have been planned in one jurisdiction and perpetrated in another, or that perpetrators may have traveled from one jurisdiction to another in order to commit crimes.
Further, witnesses and victims have traveled, especially those who became internally displaced during the violence. One parliamentarian has recently called for a Special Tribunal Division within the High Court, but has suggested the division could be entirely staffed by Kenyans. The Akiwumi Commission, for instance, was headed by a Nigerian judge. An international presence would also strengthen the capacity of the mechanism. International personnel could bring knowledge of the prosecution of international crimes in other jurisdictions. In addition to foreign judges, foreign prosecutors and investigators would help make up for the current lack of capacity found within the Kenyan police.
Defendants before the special bench or division charged with international crimes should also have access to both Kenyan and foreign counsel. And the international personnel there had no local political interest. Kenyan civil society organizations have recently refocused their efforts on advocating for the establishment of a special mechanism. Establishing such special mechanisms may take time. In the meantime, the Kenyan police should publicly inform all victims of violence that they can still come forward to file complaints, or—as in the many cases of victims who filed complaints in and never heard from the police again—check the status of complaints filed and provide complementary evidence.
Judicial accountability for post-election violence is essential and non-negotiable; not only is it required by international law, but Kenyan citizens believe prosecutions are necessary in order to move forward and prevent future violence. Judicial accountability can and should be complemented by other, non-judicial measures to ensure accountability, and the government should step up efforts to ensure the successful implementation of such measures, while bearing in mind that they cannot serve as a substitute for prosecutions.
Others worried that the two year time period provided to the TJRC to operate was insufficient given its broad mandate: to address gross human rights abuses committed throughout Kenya between and In violation of the Truth, Justice and Reconciliation Act , the government released only a small portion of the budget that had been allocated to the commission, demonstrating a lack of political will to ensure its effective functioning.
So you have to work at half your capacity. As of this writing, the TJRC is carrying out ongoing public hearings, including in areas heavily affected by the post-election violence. It intends to conclude public hearings through March , and to release its report by the end of May. Several civil society organizations warmed to the TJRC after observing its role as a platform for victims to openly denounce perpetrators. The TJRC is mandated, in its final report, to recommend prosecutions for offences that qualify as gross human rights violations and reparations for victims.
However, victims have yet to benefit from any such reparations. Civil society organizations have called for a more comprehensive national reparations policy, which the TJRC may recommend in its final report, but which should be undertaken even in the absence of such a recommendation. The non-uniformity of the compensation, which both victims themselves and the organizations working with them see as favoring Kikuyu victims, has created confusion and tension.
The government has provided no specific reparations in terms of medical assistance. In Litein, Human Rights Watch interviewed Leonard Koech, a year-old who was shot in the head by police during riots on February 5, Koech told Human Rights Watch:. The victims of the post-election violence continue to call for justice.
Ben Rawlence, senior researcher, edited the report. Additional editorial assistance was provided by Jamie Vernaelde. Human Rights Watch is grateful to the many victims of post-election violence who shared their stories with us. Finally, a number of police officials, prosecutors and defense lawyers took time out of their busy schedules to provide background information on specific cases as well as insightful analysis of the Kenyan policing and judicial systems.
We are deeply grateful for their assistance. This appendix documents the 76 cases that Human Rights Watch researched in 11 jurisdictions throughout Kenya. Human Rights Watch was unable to consult the several thousand post-election violence files listed in the March Department of Public Prosecutions report. In some cases, wrong information on case numbers provided by the Department of Public Prosecutions report or other sources led us to consult case files for minor charges; when that occurred, we included those cases in our study as well.
For a number of cases on the Department of Public Prosecutions list, upon consultation of the file, there was no evidence that the crime was related to the post-election violence; that is indicated in this chart. In a few cases on this list, Human Rights Watch was unable to physically consult the case file, but received detailed information from police, judicial officials, or other sources. The information in this appendix is on the public record. Further details on most cases, including the police case number, the Occurrence Book OB number, the location of the incident, and the names of defense lawyers, prosecutors, and judges or magistrates who handled the cases, are on file with Human Rights Watch.
Case Number. Handling stolen goods generator. Khamala convicted in , sentenced to seven years, reduced to three years on appeal; Wangala and Manyonge sentenced to probation; Kuloba acquitted. Incident appears related to PEV. Joseph Omukholo Renja. Rape; alternative charge of indecent act. Acquitted of rape; convicted of indecent act, sentenced to 1 year.
Sentenced wrongly listed as 10 years in the Department of Public Prosecutions report. Not related to PEV. Bonface Anyembe Kweyu. Convicted in April ; sentenced to three years. Murder of Evanson Ndungu Karanja. Acquitted on October 14, File indicated poor police investigations. Incident clearly related to PEV. Murder of Father Michael Kamau. Suspects were arrested because they were manning a roadblock near where Kamau was killed. There was no evidence linking them to the murder and they were released. Ben Pkiech Loyatum police officer.
Murder of Robert Onsarigo. Convicted; appeal in progress. File indicated poor police investigations and prosecution. Isaac Ngetich Timpolo. Robbery with violence. Acquitted of robbery with violence; convicted of simple robbery, sentenced to five years. Incident appears related to PEV ; opportunistic robbery carried out in context of chaos. Julius Cheruiyot Kogo. Acquitted on July 13, Convicted, sentenced to 10 years. Human Rights Watch was unable to consult file but received details from police. Unclear whether incident is related to PEV. Accused are Luhya and Kalenjin; complainants are two Kalenjin teenage girls.
Nicholas Oyamo. Assault causing actual bodily harm. Complainant withdrew charges. Not related to PEV; incident took place in Shaban Cheruiyot Ruto. Acquitted on March 6, Police and court errors: Clinical officer did not appear in court to produce exhibit no warrant issued by court ; investigating officer also did not appear despite warrant. Convicted, sentenced to one year. Conflict between landlord and tenant, both apparently Kikuyu.
Likely not related to PEV. Lichuma Melchizedek. Dispute between former boyfriend and girlfriend over money. Francis Fwamba Barasa. Arson, stealing. Investigating Officer, Police Constable. Wambua, failed to appear in court. Withdrawn in July Barnabas Tiony. Acquitted in September Prosecution did not bring any witnesses to court, including the complainant. David Mwaura Karanja. Sexual harassment. Acquitted on September 2, Complainant, an internally displaced person allegedly harassed by the accused at Eldoret Showground IDP camp, did not appear in court.
Citizens Against Violence and Others v. the Attorney General of Kenya and Others
Kennedy Kosgei and Ann Kilimo. Housebreaking and stealing, arson. First accused acquitted; warrant in effect for second accused. Prosecution failed to call any witnesses other than the complainant — including the Investigating Officer. Joseph Anzimbo. Judge acquitted accused because two prosecution witnesses gave different dates of the offense.
Appollo Nyachon Otieno. Acquitted on April 27, Police did not produce evidence to demonstrate that the metal doors found with the accused were same as those stolen. David Korir and Josephat Kiptanuito. Joseph Mukuha Mwangi. Complainant withdrew charges; reason unknown. Theft of sheep; accused and complainant both apparently Kikuyu; likely unrelated to PEV.
Withdrawn by complainant; reasons unknown. Juliet Kahindi. Kayugira with others. Withdrawn due to death of the accused in custody. Paul Shiali Ashirikwa. Defilement of a person with a mental disability. Vincent Owiti Mbayachi. Convicted, sentenced to 14 years. Mohammed Nyangala. Incest rape of his daughter. The Department of Public Prosecutions report erroneously lists this case as a conviction. Attempted defilement. Convicted, sentenced to death; appeal in progress. Acquitted, 1 April ; Sawe convicted of assault. File indicates poor police investigations. Robbery with violence, gang rape.
Gideon Kibet Ruto. Charles Kipkumi Chepkwony. Convicted in May , sentenced to death; appeal rejected. Wesley Kipsang Korir. Prosecutor produced no witnesses in court, including complainant. Harrison Kimutai Soi. Case closed pending arrest. Accused jumped bail. Unclear from file whether incident was related to PEV. Samwel Nyangaresi.
Inside humanitarian efforts to prevent and respond to Kenya election violence
Preparation to commit a felony. Robbery with violence, arson. Withdrawn in December Complainants did not appear in court. David Ndiema Kiptarus, alias Kirui, and 8 others. Evidence did not demonstrate that the two accused — a police officer and home guard present during a mob attack — were themselves involved in the attack. Judge ruled that the incident was wrongly charged as robbery with violence. Convicted, sentenced to life imprisonment; appeal pending. Human Rights Watch was unable to consult the file, which was in court when researchers visited Kitale.
Unclear whether the incident was related to PEV. Arson 2 counts ; breaking into building and committing a felony; entering a dwelling-house with intent to commit a felony; burglary. Police file never received by police prosecutor. The prosecutor moved to consolidate nine cases of arson and then asked to withdraw the case. Thomas Belsoi not formally charged. Inquest into death of Nahashon Mburu. Dedan Rop and Charles Ngeno. Acquitted on September 14, Prosecution witnesses contradicted their earlier statements and were treated as hostile witnesses.
Alex Chita Ngoji. Convicted, sentenced to four months community work. Wycliffe Walter Nyawar Owuor. Incitement to violence. According to court file, warrant for arrest of suspect issued in August ; no further information in file. Edward Kirui, police constable. Organizations that followed the case attributed the acquittal to tampering with evidence.
Clearly related to PEV. Murder of Melitus Mugabe Were. Pending before the court. Robbery with violence, attempted rape. Convicted of robbery with violence only, sentenced to life imprisonment; acquitted for attempted rape. Peter Kinywa Gichini. Convicted, sentenced to community service. Jonathan Moody William. Attempted rape.
Acquitted on March 28, Judge acquitted because after three adjournments, the police file not presented in court. Unclear whether incident was related to PEV due to lack of information in court file. Sospeter Ndungu Wanjiru. Convicted, sentenced to one year probation. The case number, the crime, and the accused are all inaccurate.
Convicted, sentenced to 30 years in prison; appeal in progress. Joseph Lokuret Nabanyi. Murder of Zezia Wangui Karanja. Pending before court. Murder of. Withdrawn on July 24, Accused discharged after witnesses did not appear for two hearings. No explanation for the unusual step of withdrawing a case mid-trial. Peter Kepkemboi. Murder of Kamau Kimani Thiongo.
Court was scheduled to rule on prosecution case on November 25, Police failed to obtain audio evidence from BBC or witness testimony. Jane Kigen Juma and Philemon Kipchumba. Robbery with violence causing death of one male victim. Withdrawn Kigen Juma ; acquitted Kipchumba. The veracity of some eye-witness reports has been compromised by a steady stream of fake news on social media platforms. But credible reports of deaths and police violence have been verified.
The Kenya National Commission for Human Rights reported that by 12 August at least 24 people had been killed by police. Medecins Sans Frontieres East Africa reported treating 64 people , 11 of who had gunshot wounds. The Kenya Red Cross treated another people with serious injuries. And journalists and opposition politicians were teargassed at a conference in Kibera to appeal for peace.
Journalists have also been arrested for attempting to cover police involvement in the violence. Under the pretence of suppressing riots, police have been reported to have forcibly entered private homes to rain terror on the occupants. There have also been reports of women being physically and sexually assaulted by police. These have been circulated on social media platforms, and in some local media. These claims of excessive force are being actively denied by the government. Its denials are fuelled by fake news reports which have become rampant on social media. Once Uhuru was announced the winner non-violent protests began.
The announcement was also used as a cover for a relatively small number of criminals to loot and damage private property. But those who wanted to exercise their right to non-violent protest were repelled by police with tear gas and live rounds. Several protesters engaged police in running confrontations. But there were no reports of inter-ethnic confrontations. This in stark contrast to the post-election clashes in which much of the violence was premeditated and ethnic in nature. This can encourage the perception that even legitimate political protest is disturbing the peace despite the fact that many who protested were driven by structural injustices including the inequitable distribution of land and other key resources.
The tepid response of international observers to the recent violence has been interpreted by many Kenyans as being dismissive of their experiences while supporting the process of voting. The focus has been on elections as triggers for violence.
3. The Post-Election Violence and Immediate Aftermath
But elections are only part of the story. Reporting needs to be grounded in the understanding that violence has structural causes. UEA Inaugural lecture: Alternative performance measures: do managers disclose them to inform us, or to mislead us? Screen music and the question of originality - Miguel Mera — London, Islington.