ICC witnesses are at double risk – of threats and bribery

Sunday April 24 2011

The defence and prosecution of the two Kenyan cases at the International Criminal Court last week began discussions on the disclosure of evidence against the so-called Ocampo Six.

It is unclear what the outcome will be. What is clear is that the judges will have to pay close attention to witness protection.

The recent failure to secure a criminal conviction in Kenya in a corruption case against one of the Six, William Ruto, is a pointer to problems that may arise at the ICC.

It is nothing short of astonishing that no less than 18 witnesses lined up for the prosecution failed to appear.

Two of the witnesses who did, reportedly turned “hostile” to the prosecution.

We are prone to blame investigators and the prosecution — as the bench did in throwing out the case. But we need to go deeper.


One or two witnesses failing to show up is one thing — 18 doing so is another. That they did should have been examined.

The point being that witness protection is a critical concern.

The prosecution has, presumably, placed under the ICC’s Witness and Victim’s Protection Unit those witnesses it intends to use.

But if, as stated at the Hague this week, it only intends to rely on 20 witnesses, 10 in respect of each case, that leaves an alarming number of potential witnesses at risk of either coercion or inducement — not just against the prosecution but also actively in support of the defence.

Meanwhile, the sickening attempts to equate these suspects of international crimes with the Kapenguria Six of our Independence struggle show that Kenya does not yet have a common narrative about the post-election violence.

In fact, three distinct narratives are not just developing, but hardening among their adherents: Narrative one, concerning the organised violence in the North Rift, legitimises it by equating it with justifiable protests about the supposed presidential results. Opponents of this narrative equate it with genocide.

Narrative two, concerning the equally organised violence coming out from Central and Nairobi into the South Rift, equates the so-called counter attacks with justifiable “self-defence.”

Ignoring the fact that, in the end, the victims of this violence had little or nothing to do with the organised violence in the North Rift.

Narrative three, concerning the violence committed by state security agencies all across the country, is becoming a non-narrative. It didn’t happen.

And, if it did, what were the state security agencies meant to do in the face of unmanageable protests except shoot to kill?

Conveniently ignoring why and where deployments happened or didn’t happen.

Or how robbing people’s homes and raping women could happen if the security agencies were under such siege as to have no other option except to kill.

So, while there is still majority support for the ICC, that support is, in truth, highly differentiated.

There is a holistic picture of the violence, its differentiated patterns, its differentiated causes and effects, its differentiated perpetrators, which the CIPEV report spelt out in stark terms. But which we still refuse to accept.

Managing any political fallout from the ICC’s cases requires that we move to that full acceptance. Because denial and revisionism will take us nowhere — except right back to where we were in 2007/8.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission