We must protect victims, Ocampo's witnesses too

Luis Moreno-Ocampo, prosecutor for the International Criminal Court (ICC), has come and gone. His visit did not, however, clarify what Kenyans are impatient to know.

We know he is pursuing cases involving politicians from both sides of the Grand Coalition Government, in which businesspeople, civil servants and state security agents may also be involved, but which cases specifically remains unclear.

We could guess, of course - the most illustrative cases, on both sides, being the attacks on the Kiambaa church as well as the attacks in Naivasha. But a guess is still only a guess.

Thus, the only reassurance we have so far is that he is pursuing both the organised violence in the North Rift as well as the equally organised counter-attacks moving out from Central Province and Nairobi into the South Rift Valley region.

This is obviously a good thing in terms of mitigating the perception that politicians from one ethnicity/political persuasion only were involved - and thus too the potential for further violence in reaction to any possible indictments that could appear one-sided.

Not so reassuring, however, is his apparent reluctance to pursue cases specifically involving state security agents.

It is clear that if the ICC is to play a deterrent role with respect to the potential for future violence, accountability must also be sought from the highest possible levels of state security agencies to remind them all of their responsibility to act impartially and in the public interest at all times.

Meanwhile, it is obvious that levels of risk and threat have increased since the decision of the ICC's pre-trial chamber to permit Ocampo to conduct the investigation.

On the ground, communities of the ethnic/political persuasion who believe 'their' men are being unfairly targeted are not making the distinction that we must all make between victims and potential witnesses.

So let us reiterate that distinction here. Victims are Kenyans who suffered the effects of the violence - those who lost family members, who were injured, who had their homes and property destroyed, who were forcibly displaced.

They are numerous. Many of them have already had the courage to share their experiences with numerous interlocutors: national and international human rights organisations, humanitarian and relief organisations, the Commission of Inquiry into the Post Elections Violence and the media.

They have done so in the belief that their stories will not just be heard but responded to, in terms of providing them not just with criminal justice but also with restorative justice.

Providing them with temporary refuge, an unsatisfactory resettlement exercise, only nominal medical and psychological care and even more nominal help to reconstruct their livelihoods is simply not good enough.

But the point here is that they are victims. And the ICC provides all victims, whether witnesses for the prosecutors' cases or not, the right to both independently participate in the court's proceedings as well as to receive, in the event of successful convictions, reparations. The fact that victims are being subjected to coercion and intimidation is unacceptable.

Given what we already know about the forms and patterns of violence at the time, it seems naive to call upon the state to ensure the protection of victims by ensuring intensified security in all areas affected by the violence, but call on it we must.

The responsibility to protect lies with the state. And it is the state that will be held accountable should anything happen, not only to victims but also to intermediaries and potential 'insider' witnesses. That state failed us all in 2007-08. It must not do so again.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* This article was originally published by The East African.
* L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission.
* Please send comments to [email protected] or comment online at Pambazuka News.