ICC in the dock over Kenya trials

Amid claims of intimidation, payoffs and failures to protect witnesses, the Hague-based international court’s cases against the country’s current leaders are in jeopardy. Catrina Stewart reports from Eldoret

Kenyan police walk past burning shacks in the Mathare Slum 30 December 2007 in Nairobi (AFP/Getty Images)

Dragged before a baying crowd, forced to kneel in the dirt and ask for forgiveness, the man was certain he was going to die. Many in the crowd that day believed so too. Hours earlier, a man from the Kalenjin tribe had been found dead, killed by security forces, and his tribesmen were out for blood.

It was December 2007, and a disputed presidential election victory by Mwai Kibaki, a Kikuyu, had plunged Kenya into deadly tribal conflict that would last six weeks, leaving more than 1,000 dead and 600,000 displaced.

Disoriented and scared, the man, a teacher who cannot be named for his own safety, repented before his angry kinsmen for working for the Kibaki campaign. To his surprise, he was spared. “We have forgiven you!” the ringleader shouted. “Now will you come and fight the Kikuyu!”

He assented, but six years later would risk his life to become a prosecution witness at the International Criminal Court where William Ruto, a Kalenjin leader and now the Deputy President of Kenya, was to be tried for crimes against humanity during the 2007-08 post-election violence. Mr Ruto is accused of planning to set up militias to attacks Kibaki supporters before the election had even taken place. President Uhuru Kenyatta, an ethnic Kikuyu, is to go on trial in The Hague next February accused of planning revenge for attacks on Kiyukus, aimed at keeping Mr Kibaki in power.

Within months, though, the witness had made an abrupt about-turn and quit the prosecution. In a claim echoed by other former witnesses, he told The Independent he was paid off by Ruto supporters to keep his silence, an offer made all the more attractive by fears for his own safety and that of his family, and his disenchantment with the prosecution. “They said: ‘We heard you were one of the witnesses. Why don’t we talk? We will give you something, and you will forget about all this’,” he recalled.

Reports of widespread intimidation and bribery of witnesses in the Rift Valley area around Eldoret, Mr Ruto’s stronghold, has persuaded at least a dozen to step down as witnesses, bringing the case against Mr Ruto and a radio presenter, Joshua Arap Sang – who is accused of planning attacks with Mr Ruto and stoking ethnic hatred on the airwaves – close to collapse.

It has also gravely undermined the credibility of a court that was launched with such promise in 2002 with a mandate to hold the powerful to account. The ICC is under attack, accused of bungling the most challenging case it has tried by failing to protect witnesses and their families, and for an uneven approach on financial compensation for victims of the election violence.

Since Mr Ruto’s trial began in September, the atmosphere in Eldoret has become noticeably more hostile. Many linked to the ICC case say they have received threats, either to their person or to their ability to remain in the area, and activists fear a guilty verdict at The Hague would plunge the region back into violence – but this time against those accused of having “fixed” the trial.

Few are more convinced of that than a local businessman and one-time prosecution witness from Mr Ruto’s village. Constantly on the move to keep his whereabouts a secret, the man and his family split their time between a farm in the village and a flat in Eldoret.

In recent weeks, he says threatening visits to his home in the early hours of the morning have left him and his family in a state of nervous tension. Under the cover of darkness, men – he does not know who – have converged on both homes, he says, banging on the doors and windows and demanding entry. On each occasion, he has pretended not to be at home.

When sighted in his village, he says he hears talk that “the traitor is back”. Friends tell him of meetings between Ruto supporters, where they discuss “what to do about him”. He believes they are monitoring his phone calls.

It is the second time he has agreed to talk. When he gave his reasons for quitting the case in September, he was cagey and accused prosecutors of witness coaching. Since the nocturnal visits to his property, however, he has disowned his earlier version of events, and now says he was scared for his life after receiving threats from community elders he said were acting on behalf of influential Ruto allies.

“It was an issue of security. Since these people were in government, it was better to step down and just be an ordinary man,” he said, adding that the ICC was unable to guarantee his safety. “If I had continued as a [prosecution] witness, I don’t know what would have happened to me by now.”

Phakiso Mochochoko, the head of jurisdiction at the ICC prosecutor’s office, said witness tampering has been “unprecedented” in this case. Some people “have the idea if they can get to the witnesses … they can get rid of the cases”, he said.

He admits it is one of the most difficult cases the ICC has dealt with. Witnesses are spirited away from their family and friends and are expected to build new lives for themselves, while relatives who stay behind often bear the brunt of anger from the local community, and are either threatened or treated as outcasts, putting some witnesses under intolerable strain.

When he agreed to testify, the teacher was persuaded to take his family to Tanzania, leaving his post mid-term. He was given assurances that his children would receive schooling and that he would be supported financially.

After several months, he said, his maintenance payments had become irregular, his children were not getting the promised access to schooling, and the ICC team started talking about the possibilities of him finding a job in Tanzania, something not discussed previously. It was then that he decided to return to Kenya, where he was persuaded to withdraw from the case in exchange for an undisclosed sum. By then, his old job had been taken and his financial future was uncertain.

Kenya, once a proud signatory to the Rome Statute that founded the ICC, has aggressively attacked the court since Mr Kenyatta and Mr Ruto, former political foes, were ushered into government in March, smearing it as a “colonial” tool that targets Africans. The Kenyatta government has repeatedly tried to defer the cases, while the local media has gone to unprecedented lengths to unmask prosecution witnesses, exposing them to danger.

Britain, which abstained from a recent UN Security Council vote to defer Mr Kenyatta’s trial by one year, felt the ire of its former colony when its diplomats were kicked out of an Eldoret hotel last month during a meeting with civil rights activists. Local officials suggested they were gathering evidence and looking for new witnesses on the behalf of the ICC.

In Eldoret, many believe the cases against their leaders are making things worse, focusing the country afresh on ethnic tensions that most in this town would rather forget. “The ICC cases are of no use to Kenya. It’s not going to assist the victims,” said a driver, 35, who did not want to be named. “The big man in Europe is using the ICC to do politics in Africa.”

Despite his decision to step away from the prosecution, the businessman from Mr Ruto’s village is quietly insistent that the trials are the only way forward for Kenya, and for the victims who lost family members and have never been able to return to their homes.

“It’s crucial for the case to go on so that the victims can believe that justice will be done,” he said. “It will prove that all people are equal before the law.”

Former foes: The accused

Uhuru Kenyatta

Kenya’s current President lost the 2002 election to Mwai Kibaki, but was a key Kibaki backer in 2007. He is accused of crimes against humanity for orchestrating violence against ethnic groups seen as supporting Mr Kibaki’s challenger, Raila Odinga. Mr Kenyatta, the son of the country’s founding leader, Jomo Kenyatta, denies all charges.

William Ruto

A supporter of Raila Odinga at the 2007 election, Kenya’s Deputy President is accused of crimes against humanity, allegedly planning attacks on Kibaki supporters even before the vote began. His trial at the ICC began in September and is expected to last for years. He denies the charges. Mr Ruto and Mr Kenyatta struck up an alliance ahead of the 2013 election.