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Police insist they will continue looking into alleged abuses despite concerns about lack of capacity and political will.

By IWPR contributor

Campaigners seeking justice for the perpetrators of Kenya's 2007-08 post-election violence have raised serious concerns about the way the national police force has investigated cases, amid allegations of government interference.

The Kenyan police say they are actively investigating 400 out of 6,000 reported cases stemming from the violence.

At least 1,100 people died and 3,500 were injured after a presidential election in December 2007 as violence erupted between supporters of the Party of National Unity, PNU, and the Orange Democratic Movement, ODM, which are now in a coalition government.

Rights groups say that the police investigations lack credibility and that the parties allegedly behind the chaos have colluded to circumvent justice.

"Our investigations have revealed that a huge number of youths who were being held in police cells for various crimes related to the violence were released unconditionally after a deal was struck between the PNU and ODM," Neela Ghoshal, a researcher with the New York-based advocacy group Human Rights Watch, told IWPR.

The allegations have been strongly denied by government spokesman Alfred Mutua, who says no such agreement ever existed.

"Anyone who was set free at that time was released by the courts. When a crime is committed, you cannot decide its outcome using politics,” he said.

But government chief whip Johnstone Muthama acknowledges that such a deal was made, although he accepts this was ill- advised.

"It was wrong for those who were arrested to have been released without following the due process of the law," he said.

Six prominent public figures, including the deputy prime minister, Uhuru Kenyatta, and former education minister, William Ruto, have been charged with orchestrating the violence by the International Criminal Court, ICC, in The Hague.

The international community has called on Kenya to prosecute middle- and lower-level figures accused of involvement in the violence, and try them at a special tribunal in Kenya as they will not be brought before the ICC.

Legal experts are calling for investigations to be halted until much-needed reforms of the police force are carried through. Kenya's new constitution, voted into law in August 2010, provides for such reforms.

"No one has got any confidence that [this police force] can carry out credible investigations or prosecute anyone [for post-election violence]. We have to wait for police reforms," Paul Muite, a human rights lawyer and former legislator, said.

Kenya's director of public prosecutions, Keriako Tobiko, says that even as police pursue the 400 ongoing investigations, 550 more have already reached court. However, he concedes that some of these cases have been thrown out.

"Of the 550 cases taken to court, 258 have been concluded and the accused persons found guilty and sentenced. However, 87 suspects were acquitted due to lack of evidence while a further 138 cases were withdrawn," Tobiko said.

Rights groups have raised concerns as to whether the cases are being investigated properly and fairly.

"There are serious problems with police investigations," Ghoshal said. "Victims, magistrates and state counsels have all expressed dissatisfaction at police investigations of these cases. We have had instances where police have failed to carry out identification parades, police files have gone missing or were lost, and the list [of irregularities] is just endless."

In a report released on November 9, Human Rights Watch questions whether the cases cited by the department of public prosecutions are in fact related to the 2007-08 violence.

"After visiting most of the law courts where these cases were heard, we believe that only ten cases that the [director of public prosecutions] claims are before courts are actually related to the violence," Ghoshal said. "But at least two murder cases in Nakuru and Kericho towns that were related to the violence resulted in convictions."

The report also underlines that no member of the Kenyan police has been brought to justice for the violence, despite an estimated 962 police shootings and dozens of rapes in the aftermath of the 2007 election.

It is unclear why information about ongoing and completed cases is not readily available.

Florence Jaoko, chair of the Kenya National Commission on Human Rights, said attempts by organisations like hers to receive updates on the investigations have proved futile.

"These investigations are not genuine, as it has taken over four years for them to begin," she said. "At the local level, we have never had information on such cases. It is important for the state to give that information to the public, if at all they are investigating them."

Soon after the violence, Jaoko’s commission released a report called “On the Brink of the Precipice” accusing several high-ranking former and serving politicians of being behind the violence.

Jaoko says these individuals are among those who should be prosecuted in Kenya, if the authorities are "really serious [about] fighting impunity".

Some argue that the police cases are merely a publicity stunt aimed at persuading the ICC to hand back the six suspects to be tried in Kenya.

"There is no evidence that these cases are genuine," said Ghoshal. "They are but a show in front of the International Criminal Court to try and convince them that the Kenyan authorities are doing something about the violence."

Earlier this year, Kenya sought to convince the ICC that it was prosecuting cases of post-election violence itself, and that there was no need for the court put the six suspects on trial. Judges in The Hague rejected the appeal.

In August, two of the six suspects facing charges at the ICC recorded statements with Kenya’s criminal investigations department, which said it was conducting parallel investigations to those at the international court.

Former cabinet ministers Henry Kosgey and William Ruto recorded statements just weeks before appearing at the ICC for confirmation-of-charges hearings in September.

The Kenyan police reject claims that their efforts are not genuine, though they admits that the investigations have taken longer than anticipated. They say they will not back down from investigating the cases, most of which involve alleged lower-level perpetrators of violence.

"These [investigations] must of necessity be a slow process, but with persistent and professional handling I know we shall get there. We can't sit back and let people who killed others and danced before the cameras walk away. They have to be prosecuted," police spokesman Eric Kiraithe said.

The chairman of the National Task Force on Police Reforms, retired judge Philip Ransley, supports investigations wider than those at the ICC. But he says the police force as it is currently constituted is unable to carry out these investigations.

"I expected police reforms to be well under way by now, but obviously they are going to take some time to complete. The criminal investigations department would have been better suited to investigate these cases, but until the reforms are under way, they cannot do very much," Justice Ransley said.

The task force he heads was appointed by President Mwai Kibaki in May 2009, following recommendations by a national commission of inquiry into the violence, chaired by Justice Philip Waki.

Tobiko, the director of public prosecutions, rejects claims that ongoing cases are just meant to impress the ICC, and says they will go on irrespective of the outcome of confirmation-of-charges hearings in The Hague.

In September 2011, Kenya's attorney general Githu Muigai led a high-ranking mission to The Hague to ask ICC prosecutor Luis Moreno-Ocampo to share the evidence he had on lower-level perpetrators. The request was quickly dismissed by Moreno-Ocampo.

Muite says the trip was a clear indication that the police had not conducted any investigations or gathered evidence to prosecute cases.

"The police should stop making these statements, as they are insulting to the intelligence of the Kenyan [people]," Muite said.

On December 5, former justice minister and member of parliament Martha Karua told the Kenya National Dialogue and Reconciliation Conference, chaired by former United Nations Secretary General, Kofi Annan, that no such investigations were ongoing, despite reports to the contrary from the police.

"Almost four years down the line, victims of the 2007 post-election violence are still crying [out] for justice and police are yet to start investigations or prosecute anyone," Karua said.
The Kenyan parliament has twice tried and failed to set up a local tribunal, with most members voting to have the cases taken to the ICC.

Despite repeated calls from rights groups and the international community, Tobiko says that Kenya does not require a special tribunal to prosecute middle- and lower-level suspects.
Kenya has now adopted the legal principles of the ICC's founding treaty, the Rome Statue, into its domestic code, allowing it in theory to prosecute war crimes, crimes against humanity and genocide in its own courts..

"With the reforms going on in the judiciary, I am quite confident that some of the cases can be tried in the local courts without much problem, especially considering that Kenya has enacted the International Crimes Act," Tobiko said.

But Human Rights Watch says the fact that some of the cases "amount to crimes against humanity" makes it impossible for the local courts to deal with them.

"Some of the crimes were planned in one area and then committed in another area. The local courts do not have the capacity to deal with these complexities, despite the ongoing reforms in the judiciary," Ghoshal said.

Pointing to the international support that has been provided to other justice mechanisms implemented in Kenya, such as the Truth, Justice and Reconciliation Commission, Ghoshal said,

"The local tribunal should have international input for them to be credible. At the moment, Kenyan institutions don't have the capacity to prosecute these cases, and they need international help."

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