Okiya Omtatah Okoiti: Kreigler Commission is dead without witness protection

I ‘M NOT EXCITED BY NEWS THAT the Independent Review Commission of Inquiry into the handling of last year’s General Election led by retired South African judge Johann Kreigler is finally set to start its work.

My lack of excitement is not because the ECK commissioners and other staffers are still holed up in their offices where they can tamper with the evidence as they fine-tune their act to undermine the commission.

I am also not overly concerned that the commission will not try to establish who between President Kibaki and Mr Raila Odinga, won the presidential election.

What, in essence, this means is that the key perpetrators of the anarchy that snowballed into the post-election violence that has consumed many poor Kenyans will never be known, let alone be brought to book.

My main concern is that the commission is proceeding without any mechanism to protect those with evidence who might wish to appear before the it.

IT IS NOT ENOUGH FOR THE COMM ission to say that though it will hold its hearings in public, it will decide when it is necessary to take evidence in camera to “protect the person, property or reputation of any witness”.

The commission can only achieve its mandate of establishing what went wrong with the December 2007 elections by receiving credible information from witnesses. But to encourage the public to give evidence, the commission must first provide tangible protection and benefits to those who come forward.

At the very onset, the Kreigler Commission must recognise the need for legislative measures to protect those who disclose information relating to criminal or irregular conduct in society. The commission should not work as if it is of the view that it is not apposite to first deal with the question of witness protection as their most critical issue.

Many civil society members have been approached by people wishing to appear before the commission but who fear for their safety. These people include some who supervised the elections in the field or who know what mischief played out at the KICC.

Some would-be witnesses have even said that they can only speak out in the event they are assured of relocation to a third country for their own safety.

Ideally, the Kreigler Commission should not begin working before Parliament passes a law that will establish the rights of, and benefits for, witnesses.

The said rights and benefits should include the following: personal security and protection; relocation; change of identity; assistance from Government in obtaining means of livelihood; just compensation; and protection against reprisals, including prejudicial and discriminatory treatment in the workplace.

This would reduce the risks to witnesses, and diminish the possibility of losing crucial leads due to the unwillingness of informers to come out in the open, for fear of retaliation.

Further, it is not just the Kreigler Commission that requires a law that will create conditions in which witnesses will feel safe enough to come forward. If our leaders are to be believed, we will soon have a Truth, Justice and Reconciliation Commission.

It must be appreciated that witnesses in hostile cases are very susceptible to adverse factors: If witnesses perceive a serious risk to themselves, they are far less likely to step forward.

Equally important, if they perceive that little or nothing will come of their evidence, they will balance effect against risk and decide not to step forward.

HENCE, WITNESSES NEED TO BE CO-nvinced that they are safe and that the evidence they provide will be taken seriously, and that the investigations and prosecutions will be quick and effective.

Around the world, witnesses are protected before, during and after a trial, usually by the police. Most such legislation focuses on protecting witnesses against reprisals by those adversely affected by the evidence they give.

In the USA, the Federal Witness Security Programme is intended for those whose prospective testimony puts them in immediate danger. Such witnesses are usually given new identities and moved around the states, where they anonymously blend into a new city where they most likely won’t be recognised.

The US has more than 300 million people and thousands of cities in which to hide a protected witness in total secrecy. However, in a small country like Kenya, relocation to another country may be the ideal.

Mr Okoiti is a playwright and human rights activist.

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