George Kegoro, executive director of the Kenya Human Rights Commission, spoke at the Journalists for Justice Media briefing on what next after the ICC Appeals Chamber ruling on prior recorded witness testimony in the Ruto and Sang cases. He examines what can be done for persons who yearn for justice in Kenya, and if there justice as matters stand now. Here are excerpts of his remarks:
Q: What crimes have been committed in this country that then need justice?
A: There are two categories of crimes: First, there are crimes that were committed during the Post-Election Violence and for which the ICC already has jurisdiction. Those are the crimes with which Uhuru Kenyatta initially was charged before they were dropped — together with Francis Muthaura and Hussein Ali — and for which William Ruto and Joshua Sang are still on trial.
Second are the crimes against the administration of justice. These crimes occurred after the first category of crimes; and they are covered by Article 70 of the Rome Statute. The crimes against the administration of justice are intended to obstruct the possibility of accountability for the first category of crimes. The original crimes and the crimes that have been committed after the ICC took over in the Kenyan situation. The latter are crimes to do with attempts to constrain the administration justice, alleged to have occurred in both the Kenyatta case, which has been dropped, and the ongoing Ruto case.
In the Kenyatta case, the pre-trial brief that the Prosecutor prepared alleged that Kenyatta was responsible for or had or could have something to say about the disappearance of members of the Mungiki [group] who were regarded as potential witnesses in his case. Now, there has not been any investigation of that claim. That is a claim that can potentially be the subject of investigation, whether or not the Kenyatta case has ended.
In the Ruto case, there have been similar allegations of interference with witnesses. In fact, two arrest warrants have been issued: one against Philip Kipng’etich Bett and Paul Gicheru and a second one against Walter Barasa. Those arrest warrants are for witness tampering in relation to that case. Witness tampering is one of the elements of the crimes under Article 70 relating to the administration of justice.
Something that should also be recalled is the confounding death of Meshack Yebei, who disappeared in Eldoret and his body later found several kilometres away in the Tsavo National Park. It is not clear how he could have been killed, or who wanted him dead. The killing of Yebei is a crime that has remained uninvestigated. Something else to recall is the death of journalist John Kituyi in Eldoret, which is also a crime that has remained uninvestigated.
In conclusion, there are the original crimes which the ICC took jurisdiction over but there has been significant criminality or allegations of criminality that go into the question of administration of justice. These are separate crimes over which the court has jurisdiction.
Q: What attempts have been made to deal with these types crimes?
The case against Kenyatta was dropped. The case against Ruto and Sang is ongoing. On these other cases to do with the administration of justice, some attempts have been made to deal with them. These are reflected in the two arrest warrants that have been issued and the resistance to enforce those arrest warrants that have been staged at the behest, I argue, of the Kenyan state.
The Kenyan state has interposed itself as the protector of persons against whom arrest warrants have been issued in relation to the administration of justice. The effect of that is it has prevented the possibility of a trial of those crimes going forward.
In relation to Kenyatta, there is no attempt known at this stage to deal with allegations that there was interference with witnesses or there was a systematic elimination of witnesses with a view to making the evidence go away. This is a situation that remains unaddressed by the court.
Q: How does Rule 68, and the decision of the Appeals Chamber, come into the discussion?
The best way to understand Rule 68 is to say the general rule that applies to giving evidence before the ICC is that evidence shall be given orally by witnesses, in person, in court.
Rule 68 came as an attempt to provide exemptions to that general rule. Rule 68 allowed witnesses to testify through video link or through documentation that was recorded before without being presented in court under certain circumstances.
Now the attempts to apply Rule 68, which has now been disallowed, arose from the reality of five witnesses in the Ruto and Sang case being in court but recanting their evidence. One witness had disappeared and the application of Rule 68 in the particular circumstances of the case has been disallowed because it would create a situation where it would be detrimental to the defence of the two accused persons.
Q: What are the chances of dealing with the crimes for which the court has jurisdiction and the crimes it has not taken notice of?
The cases that are before the court or have collapsed before it will take their course. The worst will happen or the best will happen, the cases are in the system and will be addressed in accordance with the dynamics of the system.
But what are the chances that these other cases could go into the system? What are the chances that the cases to do with the administration of justice could ever be investigated in Kenya or before the ICC?
We now know, and the point that I am going to make is controversial but let me make it: Jubilee has come to represent a political conspiracy against accountability before the ICC. The Jubilee Alliance came together to resist the ICC; they have done that very, very well. They have done that by creating a huge political campaign that demonises the ICC nationally and at International level — before the African Union, that creates pressure before the court and therefore, changes significantly the dynamics of any possibility of trial.
The reason why this point is important is because Jubilee is here; it has said it is going to be here for at least 20 years. It, therefore, means that the chances of accountability as long as Jubilee is in power are small. So, that is something we must all accept, and then answer the question: So what do we do if Jubilee does not like the ICC, does not like these cases, does not like trials, does not like accountability and on the other hand, Jubilee is here for a very long time?
That means we have to wait for at least 20 years before anything can change in political terms that can give an opportunity for a fresh look or at these cases in a manner that Jubilee will not be a factor.
The second problem is, even if Jubilee was not a problem, we have institutional weaknesses in terms of law enforcement mechanisms. The question has got to be, can those types of institutions be trusted to work independently and give a result that amounts to a fair trial against anybody?
My answer to that question is no. They cannot. That means if you are looking at national institutions to deal with that, there is no possibility.
The third reason has got to do with Jubilee’s stand, and that is: it is actually dangerous to try to do this work. That has got to be stated. People have died. John Kituyi has died, and we do not know why. Yebei is dead, and we don’t know why. Some people have disappeared, and we don’t know why. Actually it is difficult to have accountability enforced.
Q: What do we do: resign, give up or do something else?
I am forced to reflect on how Liberia in West Africa has dealt with a situation of significant crime that has affected that country in the two civil wars. They had two bad civil wars: The first one between 1989 and 1996, and the second between 1999 and 2003. Thereafter, Liberia has been undergoing a political transition.
In 2009 Liberia’s Truth and Reconciliation Commission (TRC) recommended national accountability processes for the crimes that occurred during the civil wars. Nothing has officially been done to bring to accountability against anybody in Liberia.
Groups of nationals, supported by an international network, started discussing accountability for the crimes in Liberia. That has led to arrests in 2014 of two persons: National Patriotic Front of Liberia (NPFL) ex-commander Martina Johnson in Belgium in September 2014 and former militia leader Alieu Kosiah in Switzerland in November 2014.
Johnson left Liberia in 1997 when Charles Taylor lost power. As long as Taylor was in power, she was untouchable. After 18 years, she was arrested and is now facing trial in Belgium for crimes allegedly committed in Liberia. The same thing is happening for the other accused person.
I have it on good authority that more arrests are being planned in relation to the Liberian crimes that have not been the subject of meaningful prosecution.
The point I am making is that a small group of determined people, working almost two decades after the crimes were committed are systematically asking questions of accountability for the Liberian situation.
Bernard Ndege, whose family perished in Naivasha (Kenya), is not likely to outlive Jubilee. He is already an elderly person. He suffered huge disabilities and had severe burns. He represents the yearning for justice for the crimes that were committed in Naivasha. That may never happen in his own time. He may die and if it is a competition between Jubilee, I think Jubilee will probably outlive him. If that being the case, what happens to people like him?
Jubilee will one day go away. What happened and what is the present task? The present task is in relation to three things:
One, we must remember. We must never forget that these crimes happened. We must do all that is possible to keep remembering to make our grievances remain alive and so that they can be activated. If we forget, we lose the capacity to activate our grievances when the correct time arrives.
Two, those who have the capacity to do so must document.
Three, take care of yourselves; because for the people who are involved in this work, it is dangerous. If they are involved and take care of themselves, the opportunity to do something about it may just arrive.
