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Cablegate: Kenya: Inadequate Witness Protection Poses Painful Dilemma

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DE RUEHNR #0011/01 0051141
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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.

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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

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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.

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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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