From: Ouko joachim omolo
The News Dispatch with Omolo Beste
FRIDAY, JULY 11, 2013

Many of our readers have been touched by my article on why Uhuru Kenyatta won’t end impunity in Kenya as yet, with some pleading with him not to allow impunity to creep into his government. He must ensure the law is followed to the letter.

Peres Were from Nairobi was very categorical: “with culture of impunity in Kenya Kethi Diana Kilonzo is simply wasting her time, the court will definitely rule in favour of TNA, for that matter, in favour of Uhuru Kenyatta”.

With impunity court has no say. That is why despite of the High Court decision on the appointments of TSC commissioners the government disrespected.

Those nominated for appointment in the initial list were Kahindi Ziro James, Fredrick Haga Ochieng’ and Adan Sheikh Abdullahi. Cleopas Tirop, who had emerged tops in the interview, was missing in the list.

This list was rejected and the names taken back to the President and a new one presented to the House, this time with Tirop, Ochieng’, Abdullahi and that of the chairperson.

Mr Abdi Sitar Yusuf went to court to block the three commissioners’ names arguing the list was irregularly approved. The court blocked Ochieng’ and Abdullahi but cleared Tirop and he was sworn in.

Impunity–particularly in connection with human rights abuses committed during the 2007 post election violence is pervasive. As of late last year, there had been a total of 24 convictions in cases stemming from the violence following the 2007 elections, in which more than 1,300 Kenyans lost their lives.

No police officers had been prosecuted successfully. This is because Kenya is a republic with an institutionally strong president. That is why, even though the new constitution stipulates the creation of a Supreme Court, which was established in June 2011, president still have power to overrule the judgment.

It explains why widespread impunity at all levels of government continued to be a serious problem, despite implementation of judicial reform and the vetting of all judges and magistrates.

Human rights groups estimated that police were responsible for approximately 1,000 extrajudicial killings between 2008 and 2012; in 200 of those cases, there was credible evidence of police involvement, according to civil society groups.

In 2008 the government formed the Commission of Inquiry into Postelection Violence as part of the internationally mediated political settlement. In 2008 the final commission report recommended that the government establish a special tribunal to investigate individuals suspected of violence; however, no local tribunal was established, and the government did not conduct any investigations.

As a result of government inaction, in 2010 the International Criminal Court (ICC) opened an investigation and in March 2011 issued summonses on charges of crimes against humanity for six individuals. At year’s end three of them held official positions and two were former government officials.

The six individuals were: Uhuru Muigai Kenyatta, deputy prime minister by then and former minister of finance; William Samoei Ruto, member of parliament and former minister of higher education, science, and technology; Henry Kiprono Kosgey, minister of industrialization; Joshua Arap Sang, former head of operations for KASS FM radio station; Francis Kirimi Muthaura, former head of the public service and secretary to the cabinet; and Mohamed Hussein Ali, police commissioner at the time of the violence.

In August 2011 the ICC dismissed an appeal by the government that challenged the admissibility of the cases against the six, ruling that the government had failed to provide sufficient evidence to prove that it was conducting its own investigation.

On January 23, the ICC confirmed charges against four of the six suspects, ruling that the prosecutor had not reached the threshold for charges to be confirmed against Kosgey and Ali.

In February the government appointed a task force to investigate local cases of post-election violence in 2007-08. In an August report the task force indicated that it had reviewed 4,408 of the 6,081 files compiled by police and found that most of the files were incomplete.

No suspects were identified in 2,411 of the cases. In approximately 1,000 cases a suspect had been identified but there was insufficient evidence to prosecute. In 2008 human rights groups reported that police turned away victims or refused to take down witness testimony after the post-election violence.

Police reportedly were also responsible for many of the human rights violations during that period. As of year’s end there were 24 convictions in post-election violence cases, including two for murder. No police officers had been prosecuted successfully.

That is also why, even though the law prohibits arrest or detention without a court order unless there are reasonable grounds for believing a suspect has committed or is about to commit a criminal offense, police frequently arrested and detained citizens arbitrarily.

Police often stopped and arrested citizens to extort bribes; those who could not pay were jailed on trumped-up charges and beaten. Police often failed to enter detainees into police custody records, making it difficult to locate them.

Although the president historically had extensive powers over appointments, including for the positions of attorney general, chief justice, and appellate and High Court judges, according to the new constitution, promulgated in 2010, vests responsibility for making recommendations for the appointment of judges in the Judicial Services Commission (JSC), which must publicly vet candidates, president still have the power to determine who is appointed.

The government did not always respect judicial independence. It explains why in June President Kibaki ordered members of the Provincial Administration to disregard the High Court’s ruling after the court declared their appointments unconstitutional.

The government occasionally used the legal system to harass critics, like what happened with KNUT officials recently. The government used the court to declare that their strikes are illegal.

Even with law in place to protect media, government still uses security forces to harass members of the media. Good example is what happened in April when police threatened two journalists, The Standard’s Osinde Obare and Radio Citizen’s David Musindi, for publishing stories on a police raid at a market in Kitale.

According to Obare, Kitale police chief Luca Ogara called him to ask why he published a negative story about the police and threatened repercussions if he returned to Kitale. In some cases their cameras confiscated by police and film destroyed.

Another example is what happened in May when two journalists with The Standard Media Group, Senior Investigative Editor Mohammed Ali and Dennis Onsaringo, filed a complaint with the police commissioner regarding ongoing threats and intimidation by senior police officials.

In 2011 Ali filmed an investigative series for the Kenya Television Network (KTN) on police complicity in drug dealing and the role of state agents in frustrating an investigation into a large cocaine seizure.

Pressure from politicians, including former defense minister Christopher Murangaru, forced KTN to stop broadcasting the series. The police investigation into threats to Ali’s life and the defamation lawsuits sparked by the program were unresolved at year’s end.

In September prison warders at the Machakos Law Courts attacked Jonathan Mutiso, a KBC reporter, for filming an inmate who had attempted to escape by climbing on the roof of the court.

The warders confiscated the camera and ordered two Kenya News Agency interns to erase footage of the incident, threatening the two with violence if they did not comply. The warders were disciplined following a demonstration by journalists.

On September 30, police arrested three Somali journalists who were reporting on a grenade attack on a school in Eastleigh. The journalists were released without charge and deported from the country.

The Committee to Protect Journalists issued a report in February noting that impunity in cases of torture of journalists remained a problem. Ten journalists reported mistreatment at the hands of police in 2011; the government had taken no action in any of the cases as of year’s end.

These are just but few examples to demonstrate how the government of Kenya will not end the culture of impunity any sooner. And because the TNA is determined that Kethi’s name deleted from the register because they did not want her to vie for Makueni senatorial seat, you will not be surprised that the court will still rule in favour of TNA. That is Kenya you call yours.

Fr Joachim Omolo Ouko, AJ
Tel +254 7350 14559/+254 722 623 578
E-mail omolo.ouko@gmail.com
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Real change must come from ordinary people who refuse to be taken hostage by the weapons of politicians in the face of inequality, racism and oppression, but march together towards a clear and unambiguous goal.

-Anne Montgomery, RSCJ UN Disarmament Conference, 2002