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### Viewing cable 10NAIROBI11, Kenya: Inadequate Witness Protection Poses Painful Dilemma

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
10NAIROBI11 | 2010-01-05 11:40 | 2011-02-27 23:30 | SECRET | Embassy Nairobi
Appears in these articles: http://www.the-star.co.ke/

`

    VZCZCXRO0838
    OO RUEHROV
    DE RUEHNR #0011/01 0051141
    ZNY SSSSS ZZH
    O R 051140Z JAN 10
    FM AMEMBASSY NAIROBI
    TO RUEHC/SECSTATE WASHDC IMMEDIATE 0322
    INFO IGAD COLLECTIVE
    RHMFISS/CJTF HOA
    RHMFISS/HQ USAFRICOM STUTTGART GE
    RUZEFAA/CDR USAFRICOM STUTTGART GE

` `

    S E C R E T SECTION 01 OF 04 NAIROBI 000011

    SIPDIS

    E.O. 12958: DECL: 2020/01/05
    TAGS: PGOV PHUM ASEC KCRM KJUS UG KE
    SUBJECT: Kenya: Inadequate Witness Protection Poses Painful Dilemma

    CLASSIFIED BY: Mitchell Benedict, Political Counselor, DOS, POL;
    REASON: 1.4(B), (D)

    ¶1.      (U) This is an action request. Please see para 17.

    ¶2.      (S) Summary: In recent months, post has noted an increased
    level of intimidation against witnesses to Kenya's late 2007-early
    2008 post-election violence. This trend is consistent with security
    threats against other human rights defenders (HRDs) whose
    activities conflict with vested political interests. The government
    of Kenya (GOK) passed legislation establishing a witness protection
    program in 2006 but has yet to establish a functional program. Most
    experts are concerned that, even if implemented, the program will
    have critical vulnerabilities and be subject to political
    interference. Amendments have been proposed to the legislation to
    attempt to address these concerns. In 2007, civil society groups
    formed an ad hoc network to protect HRDs, but awareness and
    capacity are limited and the network has likely been penetrated by
    the Kenyan intelligence service. Our ability to assist HRDs is
    limited in both scope and duration, and has recently proved to be
    inadequate to fully support recent applicants. The number of
    non-HRD witnesses who will require long-term protection is likely
    to increase significantly, especially if the International Criminal
    Court (ICC) moves ahead with indictments against senior political
    leaders for their roles in the post-election violence. Robust
    action by Kenya's Truth Justice and Reconciliation Commission
    (TJRC), or much less likely Kenya's courts, could also act as
    triggers for threats against witnesses.

    ¶3.      (S) Summary, continued: Inadequate witness and HRD
    protection mechanisms within the GOK and civil society -- and
    insufficient support for witness protection by the international
    community -- are major impediments to the prosecution of organizers
    of post-election violence, whether at the ICC or (much less likely)
    in Kenyan courts. A continued lack of witness protection will also
    inhibit the work of the TJRC. Therefore, we request additional
    resources (via the Human Rights and Democracy Fund or other
    appropriate mechanism) to support civil society in developing
    alternative witness protection/HRD protection networks. We also
    request that the Department examine the parameters of the existing
    Human Rights Defenders' Fund to determine whether additional
    resources can be made available, especially for witnesses or HRDs
    who require longer-term protection. To the extent legally possible
    we should be in touch with the ICC on this issue, and we should
    urge strong support by the EU and key member states for witness
    protection.  End summary.

    Increasing Threats and Extrajudicial Killings

    ¶4.      (S) Kenya's government, political leaders, and criminal
    gangs have historically utilized intimidation and varying degrees
    of violence against opponents. During the post-election crisis
    period in early 2008, Kenya experienced extensive violence,
    returning to relative calm after the signing of the National Accord
    in February 2008. However, since the March 2009 killing of two
    directors of the Oscar Foundation (a local NGO which documented and
    publicized cases of extrajudicial killings by GOK security forces)
    by suspected members of a police death squad, we have noted a
    steady rise in the number of individuals threatened or killed for
    apparent political reasons. A number of witnesses who testified
    before the Commission to Investigate Post-Election Violence, also
    known as the Waki Commission, have already been threatened. Two
    classes of post-election violence witnesses are most vulnerable:
    ethnic Kalenjin witnesses in Rift Valley province, and ethnic
    Kikuyu witnesses to post-election violence in Nairobi and Central
    province, especially those with links to the Mungiki movement.
    However, due to the widespread and complex nature of the
    post-election violence, witnesses can come from all ethnic groups
    and walks of life, and unlike HRDs, are not part of a civil society
    network.

    ¶5.      (S) Politically-motivated intimidation and violence in
    Kenya spans a broad spectrum of perpetrators and victims. After the
    Oscar Foundation murders, post helped four witnesses to relocate to
    Uganda after they were allegedly threatened by the police. Members
    of Parliament and their staff who have sought to advance
    legislation to establish a local tribunal to try suspects
    implicated in post-election violence have received death threats.

    NAIROBI 00000011  002 OF 004

    One parliamentarian's aide received a text message stating "u
    better stop associating with him...do you want we start counting
    your days also" two days before three suspects attempted to kidnap
    the aide. Since 2007, security forces have often used lethal and
    excessive force when apprehending suspected members of the Mungiki,
    an ethnic Kikuyu movement linked to various criminal activities,
    especially in Nairobi and Central province. In November 2009,
    Mungiki spokesman Njuguna Gitau was killed on a busy Nairobi street
    by suspects alleged to be undercover police officers. At the time
    of his death, Gitau was working to register a political party to
    represent Mungiki and youth interests.  According to one source,
    Gitau may have been the lynchpin to channel funding from Uhuru
    Kenyatta to the Mungiki during the post-election violence.

    ¶6.      (S) Of particular concern for Kenya's reform process are
    increasing threats to witnesses of the post-election violence. As
    the ICC prepares for potential prosecution of key organizers of the
    violence, multiple sources indicate that implicated political
    leaders, notably cabinet ministers William Ruto and Uhuru Kenyatta,
    are directing a campaign of intimidation against potential
    witnesses. The ICC has not yet launched a formal investigation into
    crimes committed during the post-election violence, but has already
    expressed concern about threats to witnesses. ICC representatives
    have met with GOK officials regarding lack of progress in
    establishing its national witness protection program. The ICC does
    not have its own witness protection program, but rather must rely
    on national programs to keep witnesses safe. Some NGOs have noted a
    clear connection between visits by Chief Prosecutor Moreno Ocampo
    and other ICC officials and subsequent intensifying pressure on
    witnesses. Kenya's TJRC has also expressed the desire to set up an
    independent witness protection unit, but has not taken any action
    to date and is itself suffering from a lack of agreement about its
    mandate (i.e. whether to focus on truth-finding, justice-seeking,
    or promotion of reconciliation). An additional update on the TJRC
    will be reported septel.

    GOK Witness Protection Remains in Limbo

    ¶7.      (S) Minister for Justice and Constitutional Affairs Mutula
    Kilonzo has publicly acknowledged receiving "bundles" of letters
    from post-election violence witnesses reporting intimidation, many
    of whom testified before the Waki Commission, and who have
    therefore already attracted unwelcome attention from post-election
    violence inciters and organizers.  While Kilonzo notes that threats
    will complicate any prosecution of post-election violence suspects,
    he continues to argue that he is powerless to protect them and
    accuses Attorney General Amos Wako, who is responsible for
    oversight of the witness protection program, of failing to fulfill
    his duties. (Note: Wako was recently subjected to 212f visa
    sanctions for his role in several high-level corruption cases, and
    does not appear to feel any sense of urgency with regard to his
    witness protection mandate. Moreover, any witness protection
    program carried out under Wako would not be credible.  Kilonzo's
    suggestion that he has no ability to realize implementation of the
    witness protection program is disingenuous at best. End note.)

    ¶8.      (S) Since the Witness Protection Act was passed in 2006,
    the Witness Protection Unit (WPU) housed within the Attorney
    General's office has been officially "launched" at least four
    times, most recently in October 2009. The WPU, headed by prosecutor
    Alice Ondiyeki, now has staff and furnished office space, but has
    yet to accept a single witness for protection. To date, the current
    and former DOJ Resident Legal Advisors have provided technical
    assistance with drafting the Act and numerous trainings to WPU
    staff, including the consultative visit of Heather Cartwright, a
    nationally-respected expert on witness protection. Judge Ann
    Williams, a judge from the Seventh Circuit Court of Appeal, has
    also provided training to prosecutors staffing the WPU. Currently,
    South African expert Gerhard van Rooyn is embedded within the WPU
    and is providing technical assistance. His position is funded by
    the UN Office on Drugs and Crime (UNODC).

    ¶9.      (S) Under the Witness Protection Act, the WPU is under the
    authority of the Attorney General (AG). Security is provided by
    members of the Kenya Police Service, and the AG has to give

    NAIROBI 00000011  003 OF 004

    approval for anyone to enter the program, although in practice he
    has devolved authority to select participants to Ondiyeki as head
    of the unit. The WPU is funded as a line item in the AG's budget,
    which is controlled by the Ministry of Justice.

    ¶10.  (S) In a recent briefing to members of diplomatic missions in
    Nairobi, van Rooyn laid out his vision for Kenya's witness
    protection program. Van Rooyn's fundamental concern is that the WPU
    as it currently exists is too closely linked to the AG and security
    forces and therefore will not be able to provide politically
    neutral protection, especially to witnesses who could implicate
    senior government officials in serious crimes. Van Rooyn has
    drafted proposed amendments to the Witness Protection Act to
    overcome what he sees as fatal flaws in the existing legislation.
    The key elements of the amendment make the WPU independent of the
    Attorney General (and, by extension, the Ministry of Justice) and
    create an autonomous, dedicated police unit for witness security
    with the authority to carry weapons. Van Rooyn also cited the need
    for vetting and revetting of WPU staff, include polygraphing, to
    ensure autonomy and confidentiality.

    ¶11.  (S) There are, however, two concerns with this approach: one
    is that under the GOK budgetary system, a completely independent
    body can be starved for finances (and therefore rendered impotent)
    unless it has a budget line and devolved authority over how to
    spend its finances. As van Rooyn pointed out, the requisite
    financial support demands concurrent political will to make witness
    protection work. He added that, given the length of time many
    witnesses might need to spend in the program, the government would
    need to fund witness and unit operating expenses for at least three
    years. Other such bodies, like the Office of the Ombudsman, have
    effectively been prevented from carrying out their mandate through
    successive budget cuts. The second concern is that the Police
    Commissioner and other senior law enforcement officials are likely
    to oppose the independent police unit, which could presumably be
    compromised by corruption or infiltrated by intelligence officials
    in the same way that existing police units could be compromised.

    ¶12.  (S) An additional obstacle is that the AG and WPU staff now
    say they cannot admit anyone into the program or otherwise move
    forward with implementation until the amendment is either passed or
    rejected by Parliament, thus building in an automatic additional
    delay of several months. In November, the AG announced his
    intention to introduce the amendment to the cabinet and thence to
    Parliament, but it had not moved forward by the time Parliament
    adjourned on December 10.

    Civil Society: Limited Capacity, Likely Compromised

    ¶13.  (S) In November 2007, Kenya human rights NGOs established a
    national human rights' defenders network, supported by and in
    partnership with post and other like-minded missions. The HRD
    network, led by the NGO Kenya Human Rights Commission, has set up a
    network of referral points and safe houses. In 2009, the network
    provided protection to 51 at-risk individuals. The HRD network has
    not attempted to provide protection for non-HRD witnesses.

    ¶14.  (S) An assessment of Kenya's HRD network conducted by the East
    and Horn of Africa HRD Project in October 2009 concluded that the
    network is hampered by a lack of capacity and funding, is largely
    unknown outside civil society circles, and has poor communication
    security procedures. Organizations active with the HRD network
    report that they have been monitored and/or threatened by agents of
    the Kenyan intelligence service. As a result, member organizations
    often reject applicants whose bona fides are unknown to them and do
    not widely publicize the existence of the network. Extensive use of
    cell phones by the HRD network and individuals under protection
    further compromises their safety as calls can be monitored by the
    GOK.

    NAIROBI 00000011  004 OF 004

    Embassy Resources Inadequate

    ¶15.  (S) Post's primary instrument for assisting at-risk HRDs is
    the Human Rights Defenders Fund, administered by Freedom House in
    coordination with the Bureau of Democracy Rights and Labor (DRL).
    While the Fund provides rapidly deployable funding to assist HRDs
    in-country or in the initial stages of relocation abroad, the
    relatively small amounts and one-off nature of the grants limit the
    utility of the Fund for HRDs with long-term protection needs. For
    example, post used the Fund to assist four witnesses to the Oscar
    Foundation murders to relocate to Uganda and apply for refugee
    status. Each witness received funding adequate for three months of
    living expenses. However, the government of Uganda took eight
    months to process their applications for refugee status (possibly
    due in part to domestic political sensitivities), during which time
    the witnesses were evicted from their housing and had no legal
    means of employment. All four ultimately returned to Kenya, where
    they remain at risk. Post's assistance to HRDs is also subject to
    surveillance. The Poloff responsible for the program has received
    two anonymous phone calls in which email correspondence to HRDs was
    cited and the officer was warned against continued support to the
    individuals.

    Action Requests

    ¶16.  (S) An apolitical, confidential state-run witness protection
    program is ultimately the best long-term solution for Kenya.
    However, this is not a viable possibility in the short to medium
    term.  We are concerned that lives are at risk in the interim. Any
    decisive forward action by the ICC will substantially increase
    already significant pressure on witnesses.  The TJRC will prove
    ineffective, whether the desired end-state is truth, justice, or
    reconciliation, unless it can create a safe environment for
    witnesses and victims to come forward.

    ¶17.  (S) First, in order to formulate effective support for witness
    protection in Kenya, we need to know more about the ICC's plans and
    what it is prepared to do in this arena. We request the Department
    to consider contacts with ICC interlocutors via the Department,
    Embassy Nairobi and The Hague about their game plan for witness
    protection, including the number and type of witnesses they would
    likely present, which witnesses would need protection and for how
    long, and whether there are high-priority witnesses with "smoking
    gun" evidence or whether the cases will rest on circumstantial
    evidence from many witnesses. Second, we request that the
    Department examine the parameters of the existing Human Rights
    Defenders' Fund to determine whether additional resources can be
    made available, especially for witnesses or HRDs who require
    longer-term protection, and explore other mechanisms as well.
    Third, we are discussing these issues with the EU and key member
    state colleagues in Nairobi (especially the British, French, Dutch,
    and Nordics), and suggest the Department consider appropriate
    demarches.
    RANNEBERGER

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