1,133 is not just a number

Status message

Operating in maintenance mode.
22

Evidence taking ends in police shooting case

8 March 2019 - 18:03

By Susan Kendi and Sarah Nyakio

Justice Fred Ochieng’s short stocky frame is not apparent when he sits front centre, presiding over his court in Kisumu. The courtroom is spacious, ventilated and well lit.

His years of experience show when he takes charge of proceedings, collapsing what would have been a lengthy hearing into a short affair. It is March 5, 2019, and after one expert witness and two victims have concluded their testimonies, it becomes clear that the court will not need to use all the two days on the matter since lawyers Janet Lang’at (representing the Office of the Attorney General, the Director of Public Prosecutions and the Inspector General of the National Police Service) and Bernadette Mutie (representing the Independent Police Oversight Authority) say they do not plan to call any witnesses.

Out of the 15 petitioners in the case, only three victims and one expert witness have testified. On Tuesday, Samwel Mohochi was on the witness stand. Mohochi is the Executive Director of Kenyan Section of the International Commission of Jurists. His evidence, however, relates to the time when he worked as executive director at the Independent Medico Legal Unit (IMLU) between 2006 and 2010. His evidence had already been presented to court in the form of an affidavit, outlining how IMLU conducted 80 post-mortem examinations during the post-election violence and the forensic investigation report compiled from the autopsies.

Lawyers representing the Attorney General, the Director of Public Prosecutions and the Inspector General of Police as well as for the Independent Policing Oversight Authority crosss-examined him before the petitioners’ lawyer, Mbugua Mureithi, re-examined him.

Journalists for Justice’s Susan Kendi and Sarah Nyakio were in the courtroom and now report excerpts of the exchanges:

Mohochi: My Lord, my name is Samwel Mohochi. I currently serve as the executive director for the Kenyan Section of the International Commission of Jurists and I am also an advocate of the High Court of Kenya.

Judge Ochieng: Today, you are reporting for whom?

Mohochi: I am appearing as a witness, in this matter, having previously served as the executive director for the second petitioner herein.

Judge Ochieng: Where do you have your evidence?

Mohochi: My evidence is contained in two affidavits, one dated December 9, 2016, which is the main affidavit, and the supplementary affidavit dated February 27, this year.

Mbugua Mureithi: (Turning to Mohochi) Are those are the affidavits you intend to use?

Mohochi: Yes.

Mureithi: My lord, that will be all.

(Mureithi sits)

Lang’at: You carried out [these] investigations while at IMLU?

Mohochi: Yes.

Lang’at: In your evidence, especially paragraph 15 of your affidavit of 2016, you said that you were gathering evidence whenever you were getting information. Who was giving you information of the suspicious deaths?

Mohochi: First and foremost the protocols being deployed in this exercise …

Judge Fred Ochieng (interrupting): Answer the question. They need to clarify. Who was giving you information about the suspicious deaths?

Mohochi: The information was gathered from eyewitness accounts and families of the deceased persons who witnessed the fatal shootings.

Lang’at: Did you already have a list of the deceased persons when you went to the ground?

Mohochi: No

Lang’at: So where were go getting the information?

Mohochi: The information relating to the dead was obtained from field presence. We had field people in all the nine locations in the country. We also liaised with other partners who are geographically located in these areas. Our starting point was contacting families, so once we discovered there are people who are dead,[we were]trying to determine where the families [are] and these families ended up offering informed consent to enable us undertake the work.

Lang’at: Did you at any time work closely with the [Kenyan] Police?

Mohochi: Yes. In all these cases we had to liaise with the Kenya Police Service for purposes of complying with the provisions of section 386 of the Criminal Procedure Code, which includes presence of the police when the post-mortems are being undertaken.

Lang’at: I will refer you to paragraph 18 of your affidavit. Under the annexure, a report of the forensic investigations that you undertook in the SMM 1 of the affidavit. There is a figure you illustrate perpetrators -- you have put a figure 29 per cent. What made you think that the police were 29 per cent of the alleged perpetrators?

 

Mohochi: From the entire sample size of this report, which was 80 post-mortems, and from the interviews and witness statements the proportion of 29 per cent that you refer to are instances where there was corroboration by eyewitness accounts of police complicity in the deaths. However, we had another 14 per cent of gunshot-related deaths that had no eyewitness accounts as to what happened.

Lang’at: When talking of police as perpetrators, are you talking of gunshot deaths?

Mohochi: Yes.

Lang’at: You fully relied on witnesses to come up with this report?

Mohochi: Yes. In addition to the accounts of witnesses there were the post-mortem findings which leads to the cause of death.

Lang’at: I would like to refer you to paragraph 23 of your affidavit … You have read the Waki Report and the recommendations that were made?

Mohochi: Yes.

Lang’at: What are the remedies you ask of this court?

Mohochi: The remedies to the petitioners, first and foremost, is justice on loss of life; and in this particular instance, there was no thorough, prompt and impartial investigation by the state. That did not happen … The building blocks are in place but these particular cases have not been addressed.

Lang’at: Is there anything that stops the petitioners from filing a suit to seek damages?

Mohochi: I would not know what informed the petitioners to file this instant petition but I think it is within their right.

Lang’at: That is all for me, Mr Mohochi.

 

Lawyer Bernadette Mutie, representing IPOA, then cross-examined Mohochi:

Mutie: Good morning. Is it okay if I just refer to you as Samwel?

Mohochi: That is fine.

Mutie: Samwel, you confirm you worked with the second petitioner, IMLU from 2006 to 2010?

Mohochi: Yes, as the Executive Director.

Lawyer Mutie: The second petitioner, during your time, interacted with the victims of police shooting that occurred during the post-election violence in 2007/2008?

Mohochi: Yes, some of them.

Mutie: Some of them?

Mohochi: Yes, the 80 in the findings.

Mutie: To be specific, what number?

Mohochi: Eighty families.

Mutie: During these interactions with the victims or families of the deceased, you got the contact details of the victims and all their families?

Mohochi: Yes.

Mutie: And you prepared a report annexed to your affidavit that you swore on December 9, 2016 (Forensic investigations) they are found in that report?

Mohochi: Yes.

Mutie: If you peruse through that report, you have not given the names of the victims of police shootings

Mohochi: Yes.

Mutie: You have also not given any contact details of the victims or their families?

Mohochi: Yes.

Mutie: Based on this report, therefore, you would agree with me that it will be difficult for someone to conduct investigations because there are no contact details or names of victims.

Mohochi: Yes.

Mutie: This report was done and published on February 26, 2008. You will agree with me that the report was done and published immediately after the post-election violence?

Mohochi: Yes.

Mutie: When you go to the second last page of the report, page 10, you listed the challenges that the second petitioner faced.

Mohochi: Yes.

Mutie: And one of the challenges is that IMLU faced difficulty in tracing families to identify the dead body? Is that true?

Mohochi: Yes.

Mutie: It was not that IMLU was incapacitated; just could not trace them?

Mohochi: There are many families we could not trace.

Mutie: And it was not about incapacity?

Mohochi: Yes.

Mutie: For now, we agree it is many years down the line?

Mohochi: Yes.

Mutie: If IMLU was to go back or any other person to trace the family those years down the line. Will it be really possible to trace them?

Mohochi: Yes I think it will

Mutie: But with a lot of difficulties?

Mohochi: Not with the difficulties we faced at that time.

Mutie: When an incident has occurred, it is always easier to trace witnesses when the matters are fresh?

Mohochi: Yes.

Mutie: And normally, when things have calmed down and so many years have passed, people move and particular to be specific and based on the information that was gathered, most of the victims of 2007/2008 PEV…

Judge Ochieng (interrupting): That is not a question …

Mutie: Sorry

Judge Fred Ochieng: Is it true, that many years later families moved?

Mohochi: I would not know what has happened with the families. Whether they have moved on or whether they have relocated.

Mutie: Particularly regarding this matter of PEV, the information out there is that there are so many victims of post-election violence they moved. They relocated.

Mohochi: I don't know.

Mutie: You have testified through the affidavit that you produced in court, that you produced your report to the Waki Commission?

Mohochi: Yes.

Mutie: Have you had a chance to go through the Waki Report?

Mohochi: Yes.

Mutie: My Lord, I would like you to turn to the annexure marked SMM 1 of the further affidavit sworn on February 27, 2019. If you look at that report, is it true that civil societies testified before the Waki Commission? I am looking at page 5 of the report.

Mohochi: Yes.

Mutie: They testified?

Mohochi: Yes.

Mutie: I want to believe that the second petitioner by its category was a civil society?

Mohochi: Yes.

Mutie: If you move to the last paragraph of page 5 of that report going forward it is listed all the civil societies that testified before the Waki Commission.

Mohochi: Yes.

Mutie: You agree with me, the second petitioner that is IMLU, is not listed in that list. Just go through it.

Mohochi: It is not listed on that page.

Lawyer Mutie:  Do you know anywhere else it is listed in that report?

Mohochi: Yes, in the annexure witness list, behind. In the annexure, Witness No. 2 two is myself indicating the exhibits produced.

Mutie: What page is that?

Mohochi: In the annexure, just go behind. Page 527 of the Waki Report is the list of witnesses,

which indicates myself as a witness No. 2, together with all the documents that were produced.

Mutie: You agree with me that the contact details or the names of the victims are not listed herein.

Mohochi: Yes.

Mutie: You also agree with me that the first petitioner, that is Citizens Against Violence(CAVI), is also not listed as part of organisations that testified on page 6?

Mohochi: Yes, it is not listed.

Mutie: It is your testimony before this court that IMLU and Waki Commission made similar conclusions that some people died of gunshot injuries.

Mohochi: Yes.

Mutie: When you look at page 385 of the Waki Report, you agree with me that the first paragraph of that page, the commission has acknowledged that those who died or were wounded by gunshots may have been victims of other people’s shootings, other people other than the police.

Mohochi: Yes, that possibility exists.

Mutie: And they have acknowledged it?

Mohochi: It is subject to investigations.

Mutie: Let's go to page 388. “Some witnesses of police shooting, they have given evidence to the Waki Commission. The first paragraph of page 38 we have a witness by the name Mr Gregory.

Mohochi: Yes.

Mutie: The second paragraph, it has given the name of Miss Alice Atieno. She was the first witness in this petition and Mr John Akiyo. They testified before the commission.

Mohochi: Yes.

Mutie: Would you confirm to me that no contact details of those witnesses have been given in that report.

Mohochi: The contact details of the witnesses? Yes, they have not been given.

Mutie: Let's turn to page 16. The last paragraph that ends on page 17. The Commission has acknowledged and confirmed that it has not given the details of the perpetrators of the 2007/ 2008 PEV.

(Requests Mr Mohochi to read the paragraph)

Mohochi: My Lord, at page 16, a portion of the second last part of the paragraph, “And one of the rules of national justice which the commission regards, is that no one should be condemned without giving them an opportunity to be heard. Pursuant to this principle, the Commission hoped that it will have an opportunity to serve all individuals adversely mentioned during the inquiry with notices of such mentions and grant them an opportunity to record the evidence in the Commission. For this commission that opportunity never arose, for a large number of adversely mentioned persons except for a few who came before us. Even in these cases it would still be necessary for the Commission to carry out further investigations before naming names, to verify all material facts. The main reason why the threshold was not met, is that the time allocated to the Commission to complete its task was extremely limited. It was in fact too short to contact and hear the side of those who had been adversely mentioned. Also in some cases the contacts and addresses of the named persons were unavailable.”

Mutie: So you agree with me that it is in the report of the Waki Commission that the perpetrators of the 2007/2008 PEV including perpetrators of police shootings have not been named?

Mohochi: Yes.

Mutie: Neither are their contact details here?

Mohochi: Yes.

Mutie: It is true, therefore, without the names of the victims and contact details of the victims and also that in absence of contact details and names of the perpetrators that it is not possible for anyone to carry out investigations.  

Mohochi: Yes.

Mutie: And we are in agreement that the names and contact details of the perpetrators have not been given.

Mohochi: Yes.

Mutie: Therefore it would be difficult for any reasonable person to carry out investigations on the basis of this Waki Report?

Mohochi: Yes.

Mutie: Based on the second petitioner’s constitution [IMLU] that you have attached to your first affidavit, the second petitioner is allowed and it is in order that they can share information with government agencies in pursuit of justice for the victim of police shooting?

Mohochi: Yes.

Mutie: I know that you left the second petitioner in 2010.

Mohochi: Yes

Mutie: And that was before the third respondent, IPOA, was constituted?

Mohochi: Yes

Mutie: And in fact the first board of authority was sworn in June 2012, IPOA?

Mohochi: I am not so sure

Mutie: Is it true that the first secretariat of IPOA came into place in June 2013?

Mohochi: I am not aware of that.

Mutie: Did you look at the petition?

Mohochi: I had a look at it a long time ago.

Mutie: [Do] you know that it was filed in September 2014?

Mohochi: Yes.

Mutie: And if we said that the first IPOA secretariat was put up in June 2013, that is basically one year after this petition was filed?

Mohochi: Yes.

Mutie: You agree with me based on the magnitude of 2007/2008 PEV that is not enough time for someone to commence and complete investigations?

Mohochi: I cannot answer that question. I don’t think I am well placed to speak [on that].These cases were many and peculiar to each other.

Mutie: The cases were?

Mohochi: The total number of cases were 1400. I cannot really predict how long they will take to investigate.

Mutie: Although you left the second petitioner in 2012, I believe you have been in touch with them regarding the matter in question, this petition in Court. Have you been in touch with them?

Mohochi: Yes.

Mutie: Might you be aware, whether the second petitioner has advised the victims of police shootings or their families to lodge a complaint with the third respondent [IPOA]?

Mohochi: No, I am not aware.

Mutie: Being a practitioner in the human rights field, I believe that you are aware a party can lodge a complaint on behalf of a victim with IPOA.

Mohochi: Yes.

Mutie: Are you aware whether the second petitioner or any other petitioner for that matter has lodged a complaint on behalf of the victims?

Mohochi: I am not aware.

Mutie: Are you aware whether the second petitioner has filed any complaint with IPOA on behalf of the victims of police shootings that occurred during 2007?

Mohochi: I am not aware.

Lawyer Mutie: You, yourself as a practitioner in the human rights field – have you lodged a complaint with the third respondent, IPOA, on behalf of any victim of 2007/2008 police shooting?

Mohochi: No.

Lawyer Mutie: [Do] you know that Citizens Against Violence (CAVI) is one of the petitioners in this matter?

Mohochi: Yes.

Lawyer Mutie: Are you aware if they have lodged a complaint with IPOA?

Mohochi: No, I am not aware.

Lawyer Mutie: Have you ever interacted with any victim who is a petitioner in this matter?

Mohochi: I cannot recall.

Lawyer Mutie: Might you be aware that any victims or petitioners herein, particularly the families of the deceased persons, are you aware if they lodged a victim with the third respondent?

Mohochi: No, I am not aware.

Lawyer Mutie: Thank you. That’s all my Lord.

Lawyer Mbugua Mureithi re-examined Mohochi. Here are excerpts from that exchange between the two:

Mureithi: Of the 80 cases you dealt with, you have the contact details of the families?

Mohochi: Yes.

Mureithi: Are you saying in those 80 cases, you worked closely with the police?

Mohochi: Yes.

Mureithi: Are you aware of the outcomes of the police investigations concerning the victims?

Mohochi: No.

Mureithi: Are you aware whether the 80 cases were investigated by IPOA?

Mohochi: No, I am not.

Mureithi: Are you aware of any time limitation for IPOA to investigate?

Mohochi: No. I am not aware of limitation of time to conduct investigations.

Mureithi: When you started you said you were complying with certain sections of the Criminal Procedure Code.

Mohochi: Yes. Section 386 and 387 of the Criminal Procedure Code.

Mureithi: In that report on page 385, where the commission were worried that some people would have killed or wounded by person other than the police, can you see that part of the report?

Mohochi: Yes.

Mureithi: Is that the only conclusion the commission made?

Mohochi: No, it is not the only conclusion.

Mureithi: What was the other conclusion?

Mohochi: The commission did observe that no evidence to this effect was received by the commission.

Judge Fred Ochieng: Did not receive evidence to what effect?

Mohochi: This was evidence, My Lord, pointing a finger to complicity of non-state actors having utilised firearms to kill.

Mureithi: Thank you.

Lawyers are expected to make their final submissions before the judge decides the case.

Share your thoughts

Comments

cialis price walgreens https://krocialis.com/ - generic cialis forums cialis warnings
generic cialis http://ucialisdas.com/ cialis prices nz
cialis daily elily https://asciled.com/ - viagra and cialis cialis 200 mg.
registered viagra with paypal <a href="https://kloviagrli.com/ ">http://kloviagrli.com/ </a> denton viagra
buy viagra online australia <a href="http://vigedon.com/ ">purchase sildenafil citrate 100mg </a> where to buy viagra safely
best cialis online <a href="https://llecialisjaw.com/ ">cialis superactive </a> cialis without persciction
what is cash advance limit in credit card <a href="http://samcash21.com/ ">credit cards with cash advance 0 apr</a> national debt relief payday loans
cash advance new castle de <a href="http://ascashapply.com/ ">quick cash short term loans</a> payday loans low rate
generic viagra overnight shipping <a href="http://viagriyvik.com/ ">viagrah </a> how much does viagra cost?
cash advance limit discover <a href="http://rirocash.com/ ">cash advance in ohio online</a> cash loan from the bank
cialis 10 or 20 <a href="https://jecialisbn.com/ ">is 10mg cialis effective</a> obat cialis 80 mg
viagra video <a href="http://lightvigra.com/ ">generic viagra 25 mg</a> buy viagra no prescription
prescription drugs from canada online <a href="http://hopeviagrin.com/ ">viagra generics canada</a> discount prescription drug
purchase viagra without prescription <a href="http://viagerkr.com/ ">registered viagra with paypal</a> free viagra sample pack
best canadian prescription prices <a href="http://online21rxon.com/ ">best erectile dysfunction pills</a> canada prescription drugs
cialis without pres <a href="http://cialisvja.com/ ">cialis med dapoxetine</a> cialis 20 mg tadalafil
walgreens pharmacy online <a href="http://xuypharmacyonline.com/">online pharmacy without prescription</a> walmart pharmacy viagra
online pharmacy usa <a href="https://ssviagriia.com/ ">viagra on ine</a> canadianpharmacy
north west pharmacy canada <a href="http://storerxpharmcanada.com/ ">pharmacy online</a> canadian drug store
viagra 50mg pills <a href="http://llviabest.com/#">generic viagra best price</a> suppliers cialas,viagra http://llviabest.com/ - viagra 50mg tablets ’
viagra sampleviagra cialis <a href="http://genqpviag.com/#">free free viagra</a> viagra online aus http://genqpviag.com/ - viagra pay with paypal ’
Precio Realmente Asombroso en Nimodipine y Pedidos En Línea Seguro! <a href=http://www.buy-and-save.biz/go.php?sid=23&tds-key=Nimodipine><u><b>COMPRA Nimodipine 30 mg EN LiNEA</b></u></a> <a href=http://www.buy-and-save.biz/go.php?sid=23&tds-key=Nimodipine><u><b> ⇒ ENTRE AQUí ⇐ </b></u></a> donde puedo comprar nimodipine femenino en chile nimodipine generico precio espana nimodipina precio 2021 Principat d'Andorra nimodipina 30 mg plus comprar? comprar nimodipine 30mg nicaragua. nimodipine 30mg sin receta 2021. comprar nimodipina 30 mg herbal. comprar nimodipine femenina en farmacias, nimodipine mas barato. nimodipina 30 mg es de venta libre. nimodipina donde comprar sin receta <i>comprar nimodipina 30mg generico sevilla</i> <u>comprar nimodipine 30mg valledupar</u> http://www.chicagonewsgroup.biz/__media__/js/netsoltrademark.php?d=gravatar.com/risperidona1mgcomprarcomseguranca nimodipine 30mg precio en peru <u>nimodipina se compra sin receta medica</u> comprar nimodipine en lima peru comprar nimotop 30 mg por internet venta en que farmacia comprar nimodipina <i>comprar nimodipina para mujeres online</i> nimodipine precio farmacia sin receta <u>nimodipine mexico sin receta</u> precio nimodipine 30 mg farmacia nimotop 30mg plus comprar nimodipine donde comprar df <u>nimodipine 30mg donde comprar chile</u> quiero comprar nimodipina en madrid nimodipina 30mg venta comprar <u>donde comprar nimodipine en la paz bolivia</u> http://en.es2lna.com/63277/famciclovir-rabais-internet-rapide-commander-famvir-femme nimodipine 30 mg medicamento venta en que farmacia puedo comprar nimotop nimodipina unguento precios! comprar nimodipina original en 24 horas. comprar nimodipine 30mg por telefono. nimodipina vendo precio. comprar nimodipina barato en madrid, donde comprar pastillas de nimodipine en bogota. <i>donde comprar nimodipina de 30mg en mexico</i> comprar nimodipine 30mg confianza comprar nimotop generico en internet donde comprar nimodipina en lima sin receta <b>comprar nimodipine 30 mg burgos</b> comprar nimodipina generico en barcelona <b>nimodipine 30 mg compra venta</b> puedo comprar nimotop sin receta en farmacia <i>nimodipina donde comprar sin receta</i> <i>onde comprar o remedio nimodipine</i> nimodipina en espana venta