HRDs have played key roles in past investigations carried out by the ICC notably in the Democratic Republic of Congo (DRC) and Sudan. They have used their contacts on the ground to ensure that the ICC investigators access victims and witnesses, have offered protection to victims and witnesses and raised awareness amongst these key actors of their rights and risks incurred by involving themselves in the investigations. For this HRDs have paid a heavy price notably in terms of their own security: defenders in both Sudan and the DRC have been forced to seek exile abroad as a result of their engagement with the ICC investigations.

The ICC states that the responsibility of the protection of intermediaries such as HRDs is of the state in question but EHAHRDP believes that given the current context in Kenya concrete measures by the ICC are essential. The reality facing defenders since 2007 suggests that the Kenyan authorities are failing to abide by this responsibility if not at times complicit in the violations against HRDs. The lack of credibility of the current witness protection programme in Kenya, along with the limitations in the current draft of the Witness Protection Act, and the failure to adequately investigate the assassinations of Mr. King’ara and Mr. Oulu of the Oscar Foundation Free Legal Clinic, killed on the 5th March 2009, are telling examples of this.

“The investigations by the ICC are likely to involve high level State actors or those in control of a significant amount of power; this reluctance even antagonism on the behalf of the authorities to fulfil their responsibility towards defenders is likely to increase rather than diminish once the investigations kick off. The ICC cannot ignore this reality.” says Mr. Hassan Shire Sheik, Executive Director of EHAHRDP.

HRDs in Kenya have already been involved in the ICC activities in the country even before yesterday’s decision and are likely to play an essential role in the forthcoming investigations. According to EHAHRDP there are a range of concrete activities which the ICC could implement and include in a protection plan for HRDs. These would have a positive impact on the security and protection of defenders, and help the ICC deal with this issue in a creative and flexible manner without overburdening the court before more significant structural, legal and financial issues have been dealt with..

“If the ICC is truly committed to ensuring the success of the forthcoming investigations in Kenya it will need to commit to the protection of human rights defenders. Concrete protection measures by the ICC for defenders serve as a powerful symbol of recognition by the ICC of the key role of defenders, as intermediaries, but would also serve a preventative role.” says Mr. Hassan Shire.

For more information please do not hesitate to contact Mr. Hassan Shire Sheikh, Executive Director of EHAHRDP on + 256 772 753 753 or Ms Laetitia Bader, Human Rights Officer at EHAHRDP on + 256 775 141 756 or [email][email protected] (French speaking).

EHAHRD-Net Index KEN 03/005/2010

Laetitia Bader
Human Rights Officer

East and Horn of Africa Human Rights Defenders Project
Human Rights House, Plot 1853 Lulume Rd., Nsambya
P.O. Box 70356 Kampala, Uganda
Tel: +256-312-265823
+256 - 414 510263
Fax: +256-312-265825

Website: http://www.defenddefenders.org