WUNRN
African Woman & Child Feature
Service
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Kenya: Sexual Violence Survivors Await Justice Nine Months
On
Waki Commission Report |
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By Joyce Chimbi |
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The
report by Waki Commission is unprecedented in many ways, in that for the
first time in Kenyan history; sexual crimes have not only been acknowledged
but also given the prominence that they deserve. The report makes grave revelations regarding sexual
crimes by indicating that they were “under-reported, under-investigated and
insufficiently addressed.” In addition, the report expresses serious concerns
regarding the lack of interest by the police, not only to prevent sexual
crimes but also to prevent them. This report has been applauded by the Federation of
Women Lawyers, (FIDA) who in addition welcome the proposal by the report for
a legal framework which will allow for justice to be achieved against
systematic sexual impunity. But
this kind of acknowledgement will come to naught unless there is a proper
mechanism to deal with the perpetrators. The hurdle now is how to deal with
the current legal framework which is far too weak to stand against this
nature of sexual crimes. As the nation continues to restore peace through
healing and reconciliation, nine months later, survivors of sexual violence
still cry for justice. What does the future hold for these women? Experts now say that the law does not hold much promise
for these women. “The Sexual Offences Act though fundamental, has
major weaknesses in the sense that it leaves out some key offences,” explains
Moses Otsieno, a lawyer. “It neither recognizes that sexual abuses performed
during a period of political chaos are genocidal or war crimes, which
therefore mean that cases of these nature cannot be tried under this Act.” The Act does recognize and criminalize gang rapes but
not within the unique context of political upheaval. This only makes the Act stronger against the day to
day sexual offences which are not peculiarly tied to political instability. In addition, the lawyer says that this weakness has
become even more glaring in light of the recent United Nations (UN)
Resolution 1820 passed early this year by the Security Council which seeks to
recognize acts of violence as genocidal crimes. According to legal experts, these survivors of sexual
violence who hold scanty evidence against their perpetrators do not have much
luck with the legal system and maybe this calls for a case law to be executed
to make a precedence around sexual offences and political instability. Although the Truth Justice and Reconciliation Bill’s
objective does not narrow down to sexual abuses, it does however make two
important provisions. Firstly, it recognizes that sexual violence
constitutes genocidal crimes, which legal experts say is critical and goes in
line with the international thinking with regards to efforts towards
eliminating violence against women. Secondly and more importantly, in light of the heated
amnesty debate, the Bill clearly indicates that no amnesty shall be granted
for all cases regarding sexual violence. The bill, which is now in its third reading in
Parliament and is expected to be voted for by the time Parliament closes the
current session, was amended in order to address sexual abuses associated
with political instability. As the Bill awaits enactment, nine months down the
line, hundreds of women are still waiting for the legal institutions to
provoke the much needed healing and grant the justice that these women
deserve. “No one can compensate you for being raped, infected
with sexually transmitted diseases, and some of us are now HIV positive with
children looking up to us,” explains a woman survivor. “But there is a certain amount of peace that only
justice can bring, there are those of us who meet our perpetrators every
other day, they are our neighbors, it’s tough knowing that they are still
very safe from the arm of law.” Experts emphasize the need for closure through
punishment to the offenders; however, they also recognize that sexual abuse
cases are very difficult to prosecute especially where evidence is wanting. They have strict requirement and immense evidential
challenges. Even where a woman has reported the incident, water
tight evidence needs to be tabled which puts most the survivors of violence
at an even disadvantageous position. Legal experts say that where evidence is strong but
the witnesses are not forthcoming, the requirement for a witness (es) can be
suspended, but where evidence is essential, the case becomes even more
difficult to handle. “However, in light of the Waki report and the
recommendations made therein, in the event that certain proposed measures are
put in place, all is not lost for these women,” explains Moses Otsieno. The lawyer further explains that having a tribunal in
place as proposed by the Waki Commission report, will see these cases
addressed comprehensively. According to the report’s recommendations which importantly
seem to speak beyond the TJRC Bill, a Tribunal with international
representation that constitutes the UN and the African Union (AU) would be a
more objective tool to deal with this nature of offences. In addition, the report recommends that if a tribunal
is not set, then the state and the victims can file complaints with the
International Criminal Courts of Justice. “The Waki Commission has been very significant
because it’s at the policy level, it has provided an opportunity where these
women can connect with the government,” expounds Millicent Obaso of CARE
Kenya. “How else can the plight of these women be brought to
the ears of the government?” The legal scenario and opportunity for justice can
therefore not be ruled out but it may be a journey so long for most survivors
of sexual violence. “My daughter is a survivor of sexual abuse, she
became pregnant and miscarried, we know who assaulted her, but she loses hope
that she will find justice, “explains a mother of four children. “I have been strong for her sake, other young women
like her are not this fortunate to have someone who stands by them and might
give up due the long and delayed process towards achieving justice.” A legal expert concurs with her, “The longer these
cases take, the lesser chances there will be for justice. With time, people
forget details, memory fails, files and important documents may be
misplaced,” adds Moses Otsieno. Despite the glaring challenges, and being positive
that the TJRC Bill will be passed and the Tribunal set, these women will be
given an opportunity to testify in both processes. Under the TJRC, they will have an opportunity to talk
about land, properties destroyed and even the lives of the loved ones they
lost. In addition, TJRC will demand that compensation be
granted to them accordingly, if the crime was by the state, then the state
will be expected to compensate, individual perpetrators will also face the
same action. Although no compensation can restore these women to
what they were before December 27, it is nonetheless a necessary gesture in
the spirit of true healing and reconciliation. _____________________________________________________________________ http://news.bbc.co.uk/2/hi/africa/7673304.stm WAKI COMMISSION:
KENYA VOICES As a
report into Kenya's election violence is presented to Kofi Annan, who
brokered a peace deal, Kenyans say they agree with its call for an
international tribunal. More than
1,500 people were killed in the violence and some 300,000 more fled their
homes. _____________________________________________________________________ |
The Waki Commission Report
The
Waki Commission Report: http://www.gendergovernancekenya.org/usawa/pdf/Waki_report.pdf
Executive Summary
The mandate
of the Commission of Inquiry
into Post-Election Violence (CIPEV) was to investigate the facts
and circumstances surrounding the violence, the conduct of state security
agencies in their handling of it, and to make recommendations concerning these
and other matters.
The Report
comprises 5 Parts. Part I of the Report is an Introduction which discusses the
historical context of the violence; Part II is a narration of the violence
province by province. Part III deals with four cross cutting issues: sexual
violence, internally displaced persons, the media and the nature and impact of
the violence. Part IV deals with acts and omissions of state security agencies
and impunity; and Part V contains recommendations made with a view to the
prevention of future reoccurrence of large scale violence; the investigation of
alleged perpetrators; and how to tackle the culture of impunity that has become
the hallmark of violence and other crimes in the country.
Sadly,
violence has been a part of Kenya’s electoral processes since the restoration
of multi party politics in 1991. However, the violence that shook Kenya after
the 2007 general elections was unprecedented. It was by far the most deadly and
the most destructive violence ever experienced in Kenya. Also, unlike previous
cycles of election related violence, much of it followed, rather than preceded
elections. The 2007-2008 post-election violence was also more widespread than
in the past. It affected all but 2 provinces and was felt in both urban and
rural parts of the country. Previously violence around election periods
concentrated in a smaller number of districts mainly in Rift Valley, Western,
and Coast Provinces.
As regards
the conduct of state security agencies, they failed institutionally to
anticipate, prepare for, and contain the violence. Often individual members of
the state security agencies were also guilty of acts of violence and gross
violations of the human rights of the citizens. In some ways the post-election
violence resembled the ethnic clashes of the 1990s and was but an episode in a
trend of institutionalization of violence in Kenya over the years. The fact
that armed militias, most of whom developed as a result of the 1990s ethnic
clashes, were never de-mobilized led to the ease with which political and
business leaders reactivated them for the 2007 post-election violence.
Secondly,
the increasing personalization of power around the presidency continues to be a
factor in facilitating election related violence. The widespread belief that
the presidency brings advantages for the President’s ethnic group makes
communities willing to exert violence to attain and keep power. Inequalities
and economic marginalization, often viewed in ethno-geographic terms, were also
very much at play in the post-election violence in places like the slum areas
of Nairobi.
One of the
main findings of the Commission’s investigations is that the postelection
violence was spontaneous in some geographic areas and a result of planning and
organization in other areas, often with the involvement of politicians and
business leaders. Some areas witnessed a combination of the two forms of
violence, where what started as a spontaneous violent reaction to the perceived
rigging of elections later evolved into well organized and coordinated attacks
on members of ethnic groups associated with the incumbent president or the PNU
party. This happened where there was an expectation that violence was
inevitable whatever the results of the elections.
The report
concludes that the post-election violence was more than a mere juxtaposition of
citizens-to-citizens opportunistic assaults. These were systematic attacks on
Kenyans based on their ethnicity and their political leanings. Attackers
organized along ethnic lines, assembled considerable logistical means and
traveled long distances to burn houses, maim, kill and sexually assault their
occupants because these were of particular ethnic groups and political
persuasion. Guilty by association was the guiding force behind deadly “revenge”
attacks, with victims being identified not for what they did but for their
ethnic association to other perpetrators. This free-for-all was made possible
by the lawlessness stemming from an apparent collapse of state institutions and
security forces.
In general,
the police were overwhelmed by the massive numbers of the attackers and the
relatively effective coordination of the attacks. However, in most parts of the
country affected by the violence, failure on the part of the Kenya Police and
the Provincial Administration to act on intelligence and other early warning
signs contributed to the escalation of the violence.
The
post-election violence is also the story of lack of preparedness of, and poor
coordination among, different state security agencies. While the National
Security Intelligence Service seemed to possess actionable intelligence on the
likelihood of violence in many parts of the country, it was not clear whether
and through which channel such intelligence was shared with operational
security agencies. The effectiveness of the Kenya Police Service and the
Administration Police was also negatively affected by the lack of clear
policing operational procedures and by political expediency’s adverse impact on
their policing priorities.
The report
recommends concrete measures to improve performance and accountability of state
security agencies and coordination within the state security mechanism,
including strengthening joint operational preparedness arrangements; developing
comprehensive operational review processes; merging the two police agencies;
and establishing an Independent Police Complaints Authority.
To break the
cycle of impunity which is at the heart of the post-election violence, the
report recommends the creation of a special tribunal with the mandate to
prosecute crimes committed as a result of post-election violence. The tribunal
will have an international component in the form of the presence of non-Kenyans
on the senior investigations and prosecution staff.
CHAPTER
THIRTEEN
Recommendations
This chapter
contains the Commission’s recommendations that relate to the State Security
Agencies and to issues of impunity. The discussion, findings and conclusions
that the recommendations are based upon are fully laid out in the preceding
chapters.
In
accordance with the established Terms of Reference regarding recommendations
for measures to eradicate impunity, legal and administrative measures and
following an investigation into the actions and omissions of the State Security
Agencies, the Commission makes the recommends appearing below. These
recommendations should be implemented under the auspices of the Panel of Eminent African Personalities
acting in consultation with the President and the Prime Minister of
Kenya, with the full co-operation of Parliament, the Judiciary and the office
of the Attorney General as more specifically described below.
1. A special
tribunal, to be known as the Special Tribunal for Kenya be set up as a court
that will sit within the territorial boundaries of the Republic of Kenya and
seek accountability against persons bearing the greatest responsibility for
crimes, particularly crimes against humanity, relating to the 2007 General
Elections in Kenya. The Special Tribunal shall achieve this through the
investigation, prosecution and adjudication of such crimes.
2. The
Special Tribunal shall apply Kenyan law and also the International Crimes Bill,
once this is enacted, and shall have Kenyan and international judges, as well
as Kenyan and international staff to be appointed as provided hereunder.
3. In order
to fully give effect to the establishment of the Special Tribunal, an agreement
for its establishment shall be signed by representatives of the parties to the
Agreement on National Accord and Reconciliation within 60 days of the
presentation of the Report of the Commission of Inquiry into the Post-Election
Violence to the Panel of Eminent African Personalities, or the Panel’s
representative. A statute (to be known as “the Statute for the Special
Tribunal”) shall be enacted into law and come into force within a further 45
days after the signing of the agreement.
4. The date
of commencement of the functioning of the Special Tribunal shall be determined
by the President, in consultation with the Prime Minister, the Chief Justice,
the Minister for Justice, National Cohesion and Constitutional Affairs and the
Attorney-General, within 30 days after the giving of Presidential Assent to the
Bill enacting the Statute.
5. If either
an agreement for the establishment of the Special Tribunal is not signed, or
the Statute for the Special Tribunal fails to be enacted, or the Special
Tribunal fails to commence functioning as contemplated above, or having
commenced operating its purposes are subverted, a list containing names of and
relevant information on those suspected to bear the greatest responsibility for
crimes falling within the jurisdiction of the proposed Special Tribunal shall
be forwarded to the Special Prosecutor of the International Criminal Court. The
Special Prosecutor shall be requested to analyze the seriousness of the
information received with a view to proceeding with an investigation and
prosecuting such suspected persons.
6. The Bill
establishing the Special Tribunal shall ensure that the Special Tribunal is
insulated against objections on constitutionality and to that end, it shall be
anchored in the Constitution of Kenya.
7. The Bill
establishing the Special Tribunal shall provide that the Special Tribunal shall
consist of four organs: the Chambers (including an Appeals Chamber) and the Prosecutor,
which shall be independent of each other, the Registry, and the Defence Office.
8. The Bill
establishing the Tribunal shall provide that Chambers shall be composed of 6
independent judges, three in the Trial Chamber, and three in the Appeals Chamber.
The Presiding Judge of each Chamber shall be a Kenyan while the other two
judges in each chamber shall be non-Kenyan and drawn from member states of the
Commonwealth.
9. The Bill
establishing the Special Tribunal shall provide for the following procedure for
the appointment of the judges for each chamber and the Prosecutor of the
Special Tribunal:
i. The
President shall appoint the Chair of the Trial Chamber in consultation with the
Prime Minister, both acting on the advice of the Chief Justice, from among
persons qualified to be appointed judge of the High Court of Kenya.
ii. The
Panel of Eminent African Personalities shall identify the other two members who
will be appointed by the President, in consultation with the Prime Minister,
from among persons qualified to serve as judge of a superior court of record in
any part of the Commonwealth.
iii. The
same procedure shall be applied for the appointment of the Chair and members of
the Appeals Chamber.
iv. The
Prosecutor of the Tribunal shall be appointed by the President in consultation
with the Prime Minister from among persons qualified to serve as judge in a
superior court of record in any part of the Commonwealth, from a list provided
by the Panel of Eminent African Personalities.
10. The Bill
establishing the Special Tribunal shall further provide for:
i. The
jurisdiction of the Tribunal which shall include the jurisdiction to adjudicate
over the criminal cases brought against persons bearing greatest responsibility
for serious crimes, particularly crimes against humanity, related to the 2007
post election violence.
ii. The
right of appeal from the decisions of the Trial Chamber to the Appeals Chamber
of the Special Tribunal.
iii. The
ouster of the Jurisdiction of ordinary courts from the in relation to the
proceedings of the Special Tribunal.
12. The Bill
establishing the Tribunal shall provide for sufficient authority and
independence to the Special Tribunal to conduct investigations and shall in
particular provide that:
• The
Special Tribunal shall have authority to recruit and control its own staff,
including such staff, working under the Prosecutor, as will be necessary to
conduct prosecutions;
• The head
of investigations and not less than three other members of the investigation
team shall be non-Kenyan so as to provide an independent approach to the
investigation function of the Tribunal.
• The
investigations team shall report to and work under the general direction of the
Prosecutor.
13. The
Special Tribunal shall take custody of all investigative material and witness
statements and testimony collected and recorded by this Commission.
Other
Recommendations
The
Commission makes the following further recommendations:
1. The
International Crimes Bill 2008 be fast-tracked for enactment by Parliament to
facilitate investigation and prosecution of crimes against humanity.
2. The
Witness Protection Act 2008 be fully utilized in the protection of all
witnesses who will need such protection in the course of investigation,
prosecution and adjudication of PEV cases.
3. The
Freedom of Information Bill be enacted forthwith to enable state and non-state
actors to have full access to information which may lead to arrest, detention
and prosecution of persons responsible for gross violations.
4. All
persons holding public office and public servants charged with criminal
offences related to post-election violence be suspended from duty until the
matter is fully adjudicated upon.
5. Upon
conviction of any person charged with post-election violence offences of any
nature, such persons shall be barred from holding any public office or
contesting any electoral position.
In
relation to overall operational and service delivery issues emanating from the
2007 elections period in Kenya
The
development and application of the National Security Policy, as articulated in
the Kenya National Dialogue and Reconciliation Agenda Item 4 and the First
Medium Term Plan (2008-2012), be finalised as a matter of urgency, and The
Conflict and Disaster Early Warning and Response systems, articulated in the
First Medium Term Plan (2008-2012), are developed and implemented as a matter
of priority, and
The State
Security Agencies develop, under the oversight of the NSAC, joint operational
preparedness arrangements (to be conducted at least once every two years)
including desk top scenarios and full operational exercises to assist in their
readiness for dealing with high level security and emergency situations, and
The joint
security operational preparedness arrangements comprise all key participants
including, in the case of elections, the ECK, the Ministry of Health, and the
Ministry of State for Special Programmes (Disaster Management), and The NSAC
take a greater leadership role in determining security priorities, focusing on
preventive strategies and actions, and providing clear direction to State
Security Agencies, and
The NSAC
develop and implement security review arrangements to ensure that agencies’
performance in security events such as the PEV are assessed, lessons learned
and appropriate improvements and modifications to standard operating procedures
are completed, and
The NSAC
immediately conduct a full review of the functionality of the committees that
make up the KSIM to determine their relative performance during the Post
Election Violence, and
Where
improvements are identified they are implemented immediately, and
The results
of the review are made public within 14 days of completion, and Immediate steps
are taken to put in place independent oversight arrangements of the operation
of the NSIS, and
The NSIS
shall be required to report annually to parliament and the annual report to be
made public.
Specific
Recommendations for the Police
1. A
comprehensive reform of the Kenya Police Service and Administration Police be
undertaken. This reform shall be initiated immediately and shall:
a. Involve a
complete audit of the current police management, structures, policies,
practices and procedures.
b. Include
extensive consultation with a wide variety of national and international
stakeholders.
c. Undertake
extensive and comprehensive public consultations d. Include an examination and
consideration of applicable international law and best practices
e. Include a
thorough examination, review and revision of all tactics, weapons and ‘Use of
Force’ employed by the Kenyan Police.
f. Explore
international capacity building possibilities for policing in general with a
specific focus on criminal investigations, community based policing and
information collection analysis and dissemination.
g. Include
the creation of a modern Code of Conduct
h. Include a
complete revision of the Police Act
i.
Incorporate a review of issues relating to the ethnic and tribal balance and
deployment within the Kenya Police Service.
j. Include
an examination of the structures of the police including the Senior Executive
k. Include
the establishment of a Police Services Commission for the Kenya Police.
l.
Investigate and make recommendations relating to any other areas of policing
and law enforcement that are, in the opinion of the Police Reform Group (PRG),
relevant to the improvement of policing services in Kenya.
2.
An ‘Independent Police Conduct Authority’ is established with the legislative
powers and authority to investigate police conduct and provide civilian
oversight. Establishment will be undertaken in the following way:
a. Enactment
of an Independent Police Conduct Authority Act
b. Involve a
complete review of the current police complaints and disciplinary processes
within the Kenya Police Service.
c. Include
an examination and consideration of applicable international law and best
practices
d. Report
directly to parliament through the Minister responsible
e. Work
under the authority of its own Act and have sufficient powers to properly
investigate all police conduct issues.
f. The
‘Authority’ is to be a person qualified to be a judge of the High Court Kenya
g. The
‘Authority’ is to have the power to investigate public complaints against
police and ‘own motion’ conduct issues.
h.
Legislation will require that some, more serious policing actions ‘must’ be
reported to the Authority i.e. allegations of corruption, deaths in custody,
serious injury and police related shootings.
i. Have the
legislative power to make recommendations for change to policing policy,
practices and procedures.
j. The
‘Authority’ is to have retrospective powers to deal with historical serious
misconduct.
3.
The Administration Police is integrated into the Kenya Police Service creating
a single police entity. The integration shall:
a. Commence
with the command, responsibility and accountability for every aspect of the
Administration Police transferring to the Commissioner of Police with immediate
effect.
b.
Effectively uncouple policing from the Provincial Administration structure.
c. Enable a
combined police organ to function in an unencumbered fashion exercising
constabulary independence in performing its functions.
d. Ensure
that all police services adopt an operational role independent of executive
influence.
e. Ensure
that a new and contemporary police entity is led by professional police
officers.
4.
All of the reforms articulated in the recommendations immediately above
relating to the Police be initiated immediately and shall:
a. Be
undertaken and completed by a panel of policing experts (Policing Reform Group
- PRG) who will work completely independent of but alongside the Kenya Police
Service and Administration Police.
b. Be
comprised of a team of four experts including Kenyan and international
specialists in transformational change, strategic auditing and policing.
c. Source
the international experts from likeminded common law countries.
d. Have the
PRG established and begin their work immediately with a mandated duration of 6
months.
e. Have the
PRG report directly to the Minister of Justice
f. Furnish
progress reports to the Government of Kenya and the African Union, regarding
the conduct and findings of the PRG and to provide a final report within two
(2) months of the end of the mandated period, unless otherwise agreed.
g. Ensure
that the PRG identify, early in the process, appropriate ‘milestones’ or ‘check
points’, at which time meaningful interim reports may also be generated.
h. Provide
that the PRG be able to make interim and immediate recommendations for reform
and change at any stage during the six months process.
Appendix
“D”
Case
Study #1450
Commission
Witness 100 heard by the Commission “in camera” 12 August 2008
The witness
is a 49 year old farmer and mother of 12 children of whom seven remain alive.
She lives in Kisumu. This study demonstrates the desperate personal situation
that some victims have found themselves in as a result of the PEV. There also
seems little follow-up or contact with the victim on the part of authorities.
Identifying material has been removed from the original statement. She told the
Commission that,
“I have
lived there throughout my married life. My neighbours were Luos and Kisiis, the
majority of them being the Luos. Before the violence, we used to live well with
our Kisii neighbours. We were good friends. Things changed during the voting.
The Luos would say that all Kisiis will leave our Kisumu. On 29 December 2007,
Luos were screaming and heading to town.
On 10
January, 2008, at around 8 am in the morning, my husband and I went to our
shamba, in Nyamthoi. I wanted to get some vegetables for the family, and my
husband had accompanied me there. At around 1 pm, my son came running to where
we were. I asked her what he wanted. He told me that our house was on fire. My
husband boarded his bicycle and left to check. My son and I walked home on
foot. On arriving at my house, I found that everything had been burnt, but the
house was still on fire. The fire began at the bedroom area. I found people
trying to put the fire out using water. The fire was then at the roof and had
started burning the iron sheet. I do not know who burnt my house and why.
I do not
think is had anything to do with politics because none of my children were
vying for the civic seats. I did not report to the police then because people
were demonstrating in town and the police were shooting regardless whether or
not you were on the wrong. The roads toward town were impassable. I however was
able to report 7 June 2008. They police officers gave me an OB number. I also
registered the number of things burnt in my house. The police have done nothing
from the date when I reported till now.
On 15
January, 2008, I went to the same shamba, but this time I was alone. I went
there to get vegetables for the family. It was about 11 am in the morning. As
soon as I started plucking the vegetables, on turning I saw 5 men coming
towards me. They were young men, dressed in trousers and vests. The conspicuous
thing about them is that they had ‘rastas dreadlocks.’ They said to me ‘Ooh
wewe ndio unasikia mzuri, unachuna mboga na sisi tunasikia mbaya…sasa tumepata-
oh you are the person feeling good…you are still plucking vegetables when we
are feeling bad.. now we have found you. They were speaking in Kiswahili. I was
not able to tell their tribes because they were all speaking in Kiswahili, and
they all had dreadlocks.
One of
the men held me on the waist, lifted me and threw me on the ground. Another man
tore my panties, and they started raping. One held my mouth so that I do not
scream. I was trying to keep my legs together, but one man held one of my legs
while another held my other leg and kept my legs apart. There were no houses
nearby. They raped me in turns. All the men raped me. Once they were done with
me, they headed to a bush that on the way to Nyalenda. The bushes are near a
river, Nyamasaria.
I was
not even able to pluck the vegetables that I had gone to cut. I just picked my
basket and headed home. I was walking slowly. I was under a lot of pain; my
hips were paining very much. I got to my house at around 4 pm. I told my
husband, who was at home by then, of what had happened to me. I did not go to
the hospital then because as I had started, the roads were impassable. I still
haven’t gone to the hospital to seek medical advice. I fear that since I have
taken long before going to the hospital, the people at the hospital may never
understand my predicament. I also did not report this to the police. I still
live in my burnt house and I fear that should it be very windy, the wind is
going to blow off the roof. I have not been able to repair my house and when it
rain, water get into my house.
My
husband passed on 23 February 2008 at his place of work where he had been
employed as a watchman. He was employed at the Wandiege Primary School. On the
night of 23 February, 2008, my husband was attacked by unknown people, killed
and placed in a classroom. His body was picked by the police officers from Kondele
Police station on 24 February 2008. They still have not done any investigation
to ascertain who killed my husband. I have been affected by post election
violence. My life has changed since I was raped, my house was burnt and the
death of my husband. I do not have a livelihood. My husband is dead and there
is no income. I do not even know who will rebuild my house. I rely on people to
help me. The clothes that my children wear, those that I wear, beddings have
all come from people. Food has been a problem. I have to sell some vegetables
to get some flour.”
Appendix
“E”
Case
Study #2
Commission
Witness 86 heard by the Commission “in camera” 7 August 2008
This male
witness is a 70 year old who gave evidence of multiple murderers killing seven
members of his family, being evicted from his home, being currently an IDP and
that at least one of the original perpetrators is now occupying his land.451 He
reported a full account to the Police but there has only been partial
follow-up. It appears that in spite of compelling evidence only one perpetrator
has been charged with murder. Identifying material has been removed from the
original statement. The witnesses recounted that,
“During the referendum campaigns of
2005, I was asked by my Kalenjin neighbours, where I would go if the Orange/No
vote carried the day, because Majimbo would be implemented and I am not of
their jimbo. I also asked them where they would go, because they are Keiyo and
we were in Uasin Gishu. A councillor, while campaigning for the No vote, used
to state that whether Banana/yes vote or Orange/No vote won, all Kikuyus must
vacate the area. Having lived in the area since 1970, the local community used
to invite me to their get-togethers. Previously, I was a senior headman. From
1982, I was a village elder of a sub-location, where a majority of the
residents are Kalenjins followed by Kikuyus and Kisiis.
During
the 2007 campaigns, the Kalenjin politicians used to make utterances that,
“….you ‘kimirio’ or ‘bunyot’ (both meaning enemy) must leave the area whether
Kibaki wins or loses in the General elections.” On the 27th of December, 2007,
I and my family members woke up very early to go and vote. The Kalenjin PNU
agents had been denied entry into the polling station and were not even allowed
to vote, though the ODM agents were allowed into the polling stations. At about
6 am, the Kalenjins started voting and this was on until about 9 p.m. The
Kalenjins were allowed to vote up to six times. Vote counting then continued
throughout the evening, until the morning of 28th December, 2007. Tension
started building up from the 28th and the 29th, and when a certain Councillor
won, it exacerbated.
On the
30th of December, after a church service within my compound, I noticed that
whereas ordinarily after the service the Kalenjins would join us in my home, on
this day, they declined. We felt that all was not well. On the 31st of
December, I was in my home with my wife, four sons, daughter and two
grandchildren. At about 5 p.m., while we were discussing family matters in the
compound, my neighbour visited us and told me that some youth wanted to cause
violence, but that the elders were against it. He assured me that the elders
would not allow the violence to take place and I was consoled.
I went
and got charcoal from a neighbour and then and headed toward my house. When I
got there, my wife informed me that there could be trouble, and further, that
two people had visited us and told her that is the youth intending to cause
violence came to our compound, she should scream and they would come to our
rescue. At the time, my sons were in the men’s house. When I went outside, I
saw about 40 armed youths at the end of my farm. The said armed youth were
talking with two neighbours so I alerted my wife that there was trouble. The
said armed youths ran into my compound screaming and my sons got out of their
houses. I asked one of the attacking youth, why they were attacking us. I told
him that is it was land they wanted, they should just let my family leave. All
this time, they were shooting arrows at us and throwing stones, while they made
sounds like dogs. He then replied that they wanted five heads from my compound.
My sons
asked me to get back into the house, and my wife and I retreated to the bedroom
where I continued pleading with the attackers through the window. The attackers
had torched all the houses. While I was still at the window, I saw one of my
sons being hit with a club on the chest, and he screamed. I called to him to
get into the house. I got under a bed with my grandson. My wife also got under
another the bed, but on the side facing the door. The attackers gained entry
into the house by forcing the door open. They got hold of my grandsons whom
they threw out of the door where they were murdered. My wife screamed, and the
attackers pulled her out from under the bed and hit her on the head with a club
before they slit her throat with a knife. Before they killed her, she was
screaming, “brother, why are you attacking us?’ He replied telling her that the
time for brotherhood was over and she had better pray.
While I
was at the window pleading with them to allow us safe passage out of the
village, I recognized 14 people who I knew to be amongst the attackers. Four of
them killed members of my family including my wife, three sons, my daughter and
two grandchildren. One carried petrol, one was and elder, one was the leader
and carried a gun, one was a teacher and there were others. Only one has been
arrested. One son escaped through the window and was pursued by the attackers
for over two kilometres. My daughter-in-law who was also hiding under the bed
with her daughter and another granddaughter, escaped after the attackers
pursued my son and hid under some bushes near the fence. I also ran out of the
burning house and hid under some bushes.
At about
10 p.m., I heard wailing as of a child, and on going to investigate, I found a
grandson of mine ( 2 years), injured but still alive. I took him, and we went
to hide in the bush. We stayed in the bush until the morning of 1st January,
2008, when I went to the Administration Police Post. There were a lot of people
camping there already. Upon arrival at the camp, I fainted. I came to three
hours thereafter. An Administration Police Officer took my grandson and cleaned
and bandaged his wounds.
My
neighbour led other neighbours in burying my family in a shallow grave, 3 days
after the attack, with the assistance of the AP officer giving guard services.
The AP officer advised that our security was not good and that we should move
to St. Muge Secondary School in Subukia, where we moved to, on or about the 4th
of January, 2008.
I know
the details of the motor vehicles that were used to transport the armed youth
from to my village. They are owned by a village resident. On the 7th of
January, my son-in-law came and picked me up from the camp and took me home to
Njambini. On the 28th of April, 2008, the bodies of my family were exhumed and
we gave them a decent burial. It is my prayer that the perpetrators of these
heinous crimes are brought to book. I have been informed that one of the
perpetrators has started building a house on my parcel of land.
That is
all I wish to say.”
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