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As part of his investigation into the country's post-election violence in 2008, International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo's visit to Kenya this week 'will be important symbolically – particularly in terms of how it is received and responded to by the relevant state agencies, departments and ministries', writes L. Muthoni Wanyeki. But will it secure the accountability needed to ensure that this never happens again?

Luis Moreno-Ocampo, the prosecutor of the International Criminal Court, will be in town this week.

Naturally, his visit, although touted as investigative, will really be more about the formalities.

Still, it will be important symbolically – particularly in terms of how it is received and responded to by the relevant state agencies, departments and ministries.

On the surface of things, all seems well so far.

The attorney general and relevant ministers have made the right kind of public pronouncements following the decision of the ICC’s Pre-Trial Chamber.

Parliament passed the required amendments to the Witness Protection Act with no visible dissent.

But the devil is always in the detail. And detail is still clearly lacking over the role of Kenya’s security services with respect to both the investigative process and witness protection.

The Commission of Inquiry into the Post-Election Violence found the security services – particularly the Administration Police and the General Service Unit – to have been responsible for no less than a third of the deaths that occurred.

It also found that the security services did not document complaints against themselves, let alone report or act decisively on them.

This is obviously a cause for concern for the ICC’s own investigative process – how will its investigators know whom to trust under the co-operation framework?

Meanwhile, it is clear that, even in the absence of publicly known data and evidence on witnesses requiring protection, that there is grave cause for concern.

A formerly high ranking officer of the AP has left the country, following well publicised reports of his knowledge of the extra-legal training exercise conducted at the AP’s training school prior to the elections.

The Kenya National Commission on Human Rights, which conducted the most comprehensive documentation of the violence prior to the CIPEV report, has been shaken by reports of leakages of what should be protected information about its own witnesses.

And, most disturbing are reports of community level and political mobilisation in affected areas to intimidate and threaten victims of the violence – who have the capacity to at least bear witness to the consequences of the violence, if not its planning, financing and execution.

The result is that those who have the most to gain from an accountability process are, in fact, being victimised once again.

On top of this they also will be the least likely to be supported by either the ICC’s witness protection programme or the state’s witness protection agency.

Because both programmes are, for obvious reasons of law, most interested in the kinds of witnesses who can connect the dots and establish chain of command for the organised violence and the equally organised counter-attacks.

And such witnesses, who would have had to be in the know, so to speak, are not likely to be terribly savoury characters themselves.

It is a painful irony.

So let us not take the appropriate pronouncements being so smoothly made at the highest state levels as a given.

Some of the internally displaced are, in fact, on the move again.

They have learnt not to take intimidation and threat lightly. But some of them really have nowhere else to go.

Let us be prepared to do what we can to mitigate the obvious backlash (including renewed violence) that this investigative process is already setting off.

But let that preparation not cause us to take our eyes off the prize – accountability is the only way through to this never happening again. No justice, no peace.


* This article first appeared in The East African.
* L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission.
* Please send comments to [email protected] or comment online at Pambazuka News.