Waki fears for chaos witnesses

• Delay by House to enact laws that provide protection worrying, says judge

The perpetrators of post-election violence could suppress evidence by threatening witnesses, Court of Appeal judge Philip Waki has warned.

Mr Justice Waki, who investigated causes of the chaos, on Friday lamented that Parliament was yet to enact laws that would ensure witnesses were protected.

In his closing remarks at the International Commission of Jurists’ 50th anniversary conference at Mombasa Continental Resort, Mr Justice Waki said even a competent Judiciary would be pressed to provide the required protection of witnesses, especially in poor countries.

“It therefore goes without saying that without witnesses coming forward, the evidential burden cannot be discharged.”

On Wednesday, Justice minister Mutula Kilonzo expressed similar sentiments, saying that ethnic cocoons had provided a shield for suspected perpetrators of gross human rights violations, with victims being threatened with dire consequences should they cooperate with institutions dealing with impunity.

This was in reference to witnesses in cases of violence that erupted after the 2007 General Election.

The evidence of these threats was contained in bundles of letters from the victims which were at his office.

As a result of the threats, there might not be credible evidence should the country proceed with the criminal justice approach.

Mr Justice Waki lamented that impunity, which was deeply rooted, particularly in African societies, was a major hindrance to peaceful co-existence among various communities and constituted a major obstacle to the evolution of democracy.

“One speaker said that the word ‘impunity’ was an overused word these days. If it has become notorious, it must be because of the conditions that allow for its continued use around us,” he said.

He noted that the emergence of international justice as a forum of last resort served both as a push for the trial of perpetrators and also as a catalyst for reforms.

“All states value their sovereignty and the integrity of their institutions and international justice interventions evoke urgency on the part of the State and serve to lift the veil of what would be masked attempts and false starts at justice,” he said.

In a related development, a lobby group has faulted a statement by Prime Minister Raila Odinga that Kenya will not hand over poll chaos suspects to the International Criminal Court.

International Centre for Policy and Conflict said the statement would undermine the quest for accountability.

On Wednesday, the PM said Kenya would not hand over the suspects as the move would be an admission that the country was a failed state.