Back in November 2009, when then-ICC chief prosecutor Luis Moreno-Ocampo filed a request to initiate an investigation into Kenya’s postelection violence, few in the country could have imagined that the court proceedings would become such dangerous business.
That February, Kenya’s parliament rejected a bill that would have created a special tribunal to prosecute those bearing greatest responsibility for the 2007 violence. Instead, many MPs, including Kenyatta and Ruto, favored turning over to the ICC evidence that was produced by a national commission of inquiry. They believed the ICC process would stall for many years. In the halls of parliament, lawmakers adopted the phrase “Don’t be vague, go to The Hague” to show their preference for the international course of justice.
By January 2012, however, when the court issued charges against Ruto, Sang, Kenyatta and former head of civil service Francis Muthaura, the national rhetoric had shifted. The accusations, presented in two separate cases, were serious. In the first, prosecutors alleged that Ruto and Sang, both supporters in 2007 of presidential challenger Raila Odinga, mobilized Kalenjin youths in the vicinity of Eldoret to attack ethnic Kikuyu and others who voted for the eventual winner, Mwai Kibaki. In the second case, Kenyatta and Muthaura were accused of orchestrating retaliatory attacks against supporters of Odinga, spearheaded by members of a notorious Kikuyu gang known as the Mungiki. Underlying all of this, the ICC acknowledged, were deep-rooted tensions over land between the Kalenjin and Kikuyu communities.
Although the new Kenyan government would pursue various diplomatic channels in an effort to have the cases halted, evidence suggests that Kenyatta and Ruto already employed more sinister means to thwart justice. In a pretrial brief made public this January in the withdrawn case against Kenyatta, ICC prosecutors list the names of eight Mungiki gang members who allegedly collaborated with Kenyatta and his allies to coordinate postelection attacks. According to prosecutors, they were then “systematically eliminated” through killings or forced disappearances before the start of the ICC process. The brief states that these tactics, along with the bribery of multiple ICC witnesses, were part of a “clean up campaign” to conceal Kenyatta’s involvement in the violence. In a statement released upon withdrawing the charges against Kenyatta, Bensouda, the chief prosecutor, noted that these efforts to “obstruct the path of justice” made it impossible to prove beyond a doubt Kenyatta’s alleged criminal responsibility.
The case against Ruto, who rose from a humble Rift Valley upbringing to become the country’s pre-eminent Kalenjin politician, has been marred by similar allegations. According to an ICC report this May, 16 of the original 42 prosecution witnesses in his case have withdrawn cooperation with the court, citing “threats, intimidation and/or fear of reprisals.” Several, in fact, have recanted statements they made to the prosecution. (Last week, in a blow to the Ruto defense, trial judges ruled that recanted statements from five witnesses will be allowed in court.) In August 2013, the court also issued an arrest warrant for a Kenyan journalist named Walter Barasa, alleging that he aimed to “corruptly influence” several prosecution witnesses to withdraw or recant incriminating testimony. According to the warrant, Barasa was part of an “identified network of individuals who have been working together to sabotage the Prosecution’s case against Messrs. Ruto and Sang.”
Although attorneys for Ruto and Sang have vehemently denied allegations of witness interference, Ken Wafula, the director of the Eldoret-based Centre for Human Rights and Democracy, who has worked closely with several witnesses in the case, paints a similarly damning picture. In an interview in his fourth floor office, overlooking market stalls and a stage jammed with idling matatu minibuses, Wafula described efforts by a core group of Ruto loyalists, including members of Kenya’s National Intelligence Service, to bribe and threaten key witnesses. Many, he said, remain in danger.
As Wafula said, the saga of Yebei, whose killing was being investigated by The Mirror Weekly, is particularly illustrative: Initially approached by the court as a potential witness, Yebei, the owner of a local computer college, told Wafula that he was recruited by Ruto’s network to coordinate the bribery of others set to testify, a role that’s been corroborated by the ICC. He was supposed to be paid $50,000 for his services. Despite carrying out the task, Yebei never received the bulk of the money and eventually approached Wafula in a quandary. Aware that he was under investigation by the ICC for his role in the scheme and feeling betrayed by those who failed to pay up, he began openly threatening to go to the court and expose the ringleaders behind the witness tampering. Instead, he wound up dead, with an eye gouged out and bullet wound to the neck. Another former witness in the case, Jonah Bureti, also disappeared in 2014 and has not been heard from since.
Today, as the ICC trial of Ruto and Sang continues, Wafula said he believes those witnesses who recanted their testimony are being targeted for “elimination.” This is due in part to fears that they could be forced to testify about witness tampering. In addition, the rights activist said, those responsible for stealing payments intended for Yebei and others may now wish to cover up their actions.
“When this money gets out of the deputy president, it’s shared between so many brokers,” Wafula said. “The people killing these witnesses might not necessarily be William Ruto himself.”
If there’s an irony in Wafula’s claims that the witnesses who have helped undermine the case against Ruto are now in the greatest danger, there is a paradox that has some Kenyans worried as the court moves slowly toward a verdict.
On the one hand, many in the country believe the ICC process played an important role in preventing violence during the 2013 election. That’s not only because opposition to the international body unified Kalenjin and Kikuyu, but also because Kenyatta and Ruto’s appearance before the court served as a deterrent. Should the case, which will likely conclude sometime next year, fail to result in a conviction, many believe Kenya’s elites will take it as a sign that the country’s long-standing culture of impunity remains intact. That mindset could raise the prospect of future political violence.
At the same time, however, others worry that a conviction of Ruto — and to a certain extent Sang — could prompt Kalenjin elites to withdraw support from the current government and lead to a resurgence of ethnic tensions in the Rift Valley. In this scenario, analysts fear, many Kalenjin would resent that only their leader was found guilty and even blame Kenyatta for failing to push harder for Ruto’s acquittal. That could lead some to scapegoat the local Kikuyu minority. Compounding this is the failure to address local disputes over land, which were a critical factor in the 2007 violence. That is a sticking point for many Kalenjin who resent Kikuyu encroachment into parts of the Rift Valley that they insist belonged to their community before the colonial period, when large tracts were inhabited by white settlers.
Seii, the Kalenjin elder, argued that unrest in the region is likely to fester until amends are made for past land displacements. Should there be a Ruto-Kenyatta “political divorce,” he said, the Rift Valley could “go back to square one.”