On the occasion of the International Day of Victims of Enforced Disappearance, commemorated on Sunday, which coincides with the fifth anniversary of the new Constitution of Kenya, it is useful to reflect on a report that Al Jazeera carried in print last week, about the the killing, early in the year, of Eldoret journalist John Kituyi, who was pummelled by unidentified people as he left a local pub in Eldoret.
His death was preceded by the well-publicised disappearance of Meshack Yebei, referred in the Al Jazeera report as “allegedly a central figure in a plot by individuals close to Ruto to buy off prosecution witnesses”.
When a body mistakenly thought to be that of Yebei was found in Yala, Karim Khan, the lawyer defending William Ruto against charges of crimes against humanity before the International Criminal Court, demanded an investigation of Yebei’s death, claiming he had been a defence witness.
Yebei was found dead at the Tsavo National Park, hundreds of miles away from where he had been abducted. By then, Khan had gone silent and no longer had demands on Yebei.
The Al Jazeera story also covered the disappearance of Jonah Bureti, a former witness before the ICC, who vanished in March 2014 and has not been seen again.
Al Jazeera links the deaths of Yebei and Kituyi by alleging that the latter had been investigating the former’s death and that this is the reason why he was killed. The report quotes an unnamed journalist as saying that “Anyone who is perceived to be pro-ICC is seen as an enemy of the incumbent leadership,” and that “The ICC has become a silent killer.”
The Al Jazeera story also refers to the pretrial brief made public this January in the withdrawn case against Kenyatta, in which the ICC prosecutor listed the names of eight Mungiki gang members who allegedly collaborated with Kenyatta and his allies to coordinate post-election attacks, and who, according to the prosecutor, were then “systematically eliminated” through killings or forced disappearances before the start of the ICC process. The brief alleged that these tactics were part of a “clean up campaign” to conceal Kenyatta’s involvement in the violence.
The allegations on Kenyatta are not new. They were first made by the prosecutor herself in December, but there has been no sustained discussion of her allegations in the Kenyan media or within the larger public, and these allegations had largely died out.
The Al Jazeera report has now revived the allegations against Kenyatta by juxtaposing them with those in the Ruto case, and making the further allegation that even those witnesses that have recanted their evidence at the ICC are not safe from targeted killing or disappearance, since they can be asked to testify about witness tampering.
While allegations about witness interference in the Kenyatta case are old, it is difficult to argue that those about the existence of a plan to eliminate witnesses in the Ruto case are new. While the obfuscation that followed the disappearance and subsequent confirmation of the death of Yebei created difficulties in understanding the circumstances surrounding his death, there was enough to raise suspicion that he might have been killed because of his connection with the court case.
HIGHLY DANGEROUS BUSINESS
Publicly, the Kenyan leadership has argued its innocence, and presented the cases against them as having been poorly-investigated and therefore unlikely to lead to a conviction. The discussion on the possibility of witness elimination as an additional defence strategy has neither been acknowledged or explored by the Kenyan media.
The reason for this seems simple. As the Al Jazeera report says, writing about the ICC “remains highly dangerous business.” The local media has not found it possible to shake off the fear that a free discussion in this subject now evokes.
When the CNN, another foreign media organisation, carried allegations that Kenya was a hotbed of terrorism, these were met with a determined backlash by the Kenyan state. By contrast, although Al Jazeera’s allegations are grave and implicate both the president and deputy, there has been no reaction to them so far.
The reason may be that a strategy of ignoring them in the hope that they go away is the better method of managing these allegations.
In retrospect, it should have been foreseeable that a Kenyatta/Ruto presidency would inherently constrain all public engagement on the ICC cases. As a result of these constraints, the only discussion that feels safe nowadays is one depicting the cases as weak and a witch-hunt against the Kenyan leadership.
Claims of the nature that Al Jazeera now makes feel dangerous to make and anybody intent on verifying them would first have overcome the fear associated with such an endeavour.
Kenya has a history of disappearances and targeted elimination both as a means of defeating justice, as happened after the murder of former Foreign minister Robert Ouko, and also as a means of addressing insecurity, as has happened with the targeting of alleged members of Mungiki and alleged terrorists.
It is regrettable that the ICC cases are claimed to be a new source of targeted elimination.
Unfortunately, however, the fear that this subject evokes, and the fact that it touches on the interests of the top leadership of the country, means that it will be difficult to bring accountability on these claims.
As citizens reflect on life under a new Constitution, it is clear that its promises will not be fully realised since the Jubilee coalition would simply be threatened by a situation where the Constitution worked as was intended.