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Scars of a nation
193

The witness for the prosecution

16 September 2019 - 07:09

Excerpt from Scars of a Nation: Survivor of Kiambaa Church Massacre and the Elusive Justice Available on Amazon https://tinyurl.com/yxsjjp55

In May this year Peter Mbuthia became the first International Criminal Court witness to publicly reveal his identity with the publication of his book ‘Scars of a Nation: Survivor of Kiambaa Church Massacre and the Elusive Justice’ in this excerpt from the book he talks of what occurred after he was approached by the ICC to serve as a witness in the case against William Ruto and Joshua Sang.

As soon as witness testimony for the case against William Ruto and Joshua Sang started at the ICC, some of my Kalenjin friends who had not spoken to me since the Post-Election Violence ended and who still lived in Eldoret begun to call me often. They would inquire about my whereabouts. I wondered why after such a long time these friends had all of a sudden developed interest in my wellbeing. Then I was told that word had spread around Eldoret Town that I was a potential prosecution witness for the case against William Ruto and Joshua Sang, and that some people were spreading rumours that the ICC had relocated me abroad. It dawned on me that my callers were all along trying to validate this information.
Someone had leaked my name. The good thing is that I was prepared for this kind of reaction. I had been made aware of an elaborate witness intimidation and stigmatization strategy had been put in place by sympathizers of ICC suspects long before the case started in the Hague.
The plan was to use social media to reveal the identity of the witnesses and spread negative stories about them as soon as they took the stand at the Hague. The objective of the intimidation strategy was to ensure that all remaining witnesses were scared of the negative publicity and back out of the process. I was made aware that the drivers of the social media campaign had managed to obtain a list of names of people approached by the ICC to be witnesses. Sure enough, when the first witness took the stand, even though their identity was concealed, social media was abuzz with speculation about who she was. This prompted the court to issue a stern warning against those trying to reveal and intimidate witnesses that were lined up to testify against William Ruto and Joshua Sang.
My relatives had the heard rumours that I had travelled to the Hague. They were worried and inquired whether I was scheduled to appear before the Hague and give testimony. I could not confirm to them my cooperation with the ICC as I feared they would try and talk me out of it. To allay their fears though, I visited my home in Eldoret and spent a few days with my family and visited my friends. Most of my friends were shocked to see me, some even told me to leave the town as soon as possible because they feared that supporters of William Ruto and Joshua Sang would harm me. When I went to church at St Mary’s Catholic church in Yamumbi the chairman asked me to stand up and greet the congregation to show them that I was still in the country. In his speech to the faithful he intimated that my ethnic community was against the idea of cooperating with the ICC.
I felt bad that someone would attempt to dissuade me from seeking justice for my son. I felt like I was being victimized for a second time, but this time by my own ethnic community. A community that had been the victims of the Eldoret violence and had suffered the most loss in the Post-Election Violence of 2008/2009. I thought they would be on my side because I was fighting for justice, but I was sadly disappointed.
I was shocked to learn that members of my own community who were themselves victims were too scared to talk about justice even though many of them knew the faces behind the orgy of violence that took place in Yamumbi village. It dawned on me that even as we complained of the slow pace of justice in the country, impunity was facilitated by the fear of victims and witnesses to come forward and speak up.
Everywhere I went in Eldoret, people made intimidating statements which inferred that it was wrong for victims to tell their stories to the ICC. Some of my close friends stopped calling me and would not pick up when I called them. They feared that our conversations would be monitored and that they would be in trouble for associating with someone branded as an ‘enemy’.

***
I could not believe that people from my community who were victims of politically instigated hate could think it was not right for me to continue with my pursuit for justice simply because the government was headed by one of our own, a Kikuyu president. I was able to note that each time that Kenya had a President from the Kikuyu ethnic community, Kikuyu people largely kept mum about injustice and corruption because they are misled that speaking up against these vices would be fighting our own government.
When I lived in Naivasha, one of the lawyers who visited me would caution me against demanding justice for victims. I didn’t care much because someone had to speak for the victims, many of whom were suffering in silence and slowly dying of the trauma. When ICC prosecutor Luis Moreno Ocampo first visited Kenya, I led some victims in a media appeal where we requested an audience with him. The plea was covered in the newspapers. The lawyer would always warn me of how dangerous dealing with sensitive information about the ICC was. He was very passionate about helping survivors and victims’ get justice and he helped us make applications to the ICC as participating victims in the case against William Ruto and Joshua Sang and also helped us apply for reparations. However, when I later learned that he had crossed over to work for the defense teams of one of the suspects, I did not know what to think of him, for I thought it was a serious conflict of interest.

Intimidation and Ostracism

I believed that the reason for leaking my name was to instigate my community against me so that I would drop out of the case. During the debate on the ICC many politicians who were opposed to it and were themselves suspects would make public statement clearly designed to intimidate and proponents of accountability for crimes against humanity that were committed. The only people who spoke for victims were human rights organisations, particularly those that were foreign based. These organisations would be maligned by some government officials who were holding brief for the suspects. Through all this, this did not kill the resolve of these civil societies who soldiered on. Sometimes it takes foreigners to identify fault lines within a system and infuse courage for the citizens to stand up for their rights.
As for me the intimidators did not know that I was aware and impervious to their machinations. I was determined to tell Anthony’s story. I was determined to seek out justice for Anthony. Only my family understood the agony I went through. I never let my children Francis and Lilian know that I was indeed cooperating with the ICC. Just as I was beginning to worry about how I was going to shield them from negative talk about me, God worked wonders. In November 2013 we relocated Francis and Lillian to the United States to join my wife Peninah and my other son Anthony who was receiving specialized treatment there.
It was a big relief for me because then I did not have to worry about the safety of my children. I only had to deal with my own safety since now my children and wife were in the United State pursuing their education uninterrupted by any sort of security worries.

Hacked Emails
While the cases were proceeding at the Hague my email account was hacked. Then, I later learnt that ICC chief prosecutor complained to the judges that e-mail accounts of witnesses were getting hacked. The prosecutor complained that some witnesses were being interfered with and intimidated. I knew that these were people who were seeking out witnesses in order to compromise and scuttle the judicial process. The Kenyan Attorney general ordered police to investigate the claims of hacking. A Kenyan blogger was arrested for allegedly hacking into ICC servers and obtaining confidential materials but was soon set free. The blogger would later be hired to work for President Kenyatta as a senior communication director. Following the hacking key witnesses in the William Ruto and Joshua Sang case began to recant their statements and opted out of the prosecution process one by one. Within a short period of time, the ICC prosecutor was deprived of all her key witnesses who she intended to rely on in the case.
I suspected that someone with an interest in the case was tracking and bribing witnesses to recant their statements. I failed to understand how witnesses who had been relocated to different countries by the ICC witness relocation programme could have been accessed by unauthorized persons. I feared that the ICC witness protection system was porous. This made me feel insecure. I began to question the whole ICC witness protection program and whether it could keep me safe. Although the Witness Protection Unit had assured me of my security and safety, I was not satisfied. I expressed my concerns to them and for the first time considered withdrawing from the case. I told them that I was not ready to tell my story at the Hague when all key witnesses had opted out. It was too risky for me to expose myself in a case which clearly seemed destined to collapse.
At my last meeting with the ICC investigators, which was held in Java House restaurant on Limuru road next to the United States embassy, I told two investigators, a man and a woman, that I could envisage a situation where the case against Ruto and Sang could stall because all the key prosecution witness had been compromised.
I told them that I could I could foresee a situation where supporters of Ruto and Sang would celebrate. The man laughed off and said, “No we in the office of the Prosecutor are the ones who will celebrate.” I understood this to mean that they were confident in obtaining a conviction.
I objectively weighed the risks involved as I searched my soul as to whether I should travel to the Hague or not. Numerous questions lingered in my mind. The most pertinent ones which really helped me make a decision on the matter were the following: What if I had lost my children to the church fire? Which dad could not defend his children? Is standing up for Anthony to pursue justice for him, asking too much, when God had already saved him from the fire? Who will speak up for those who were killed in the church and the thousands of victims if I don’t? if my story is going to connect the dots when building up the Prosecutor’s case, why should I not cooperate? If my cooperation with the ICC will help deliver justice to victims, slay the dragon of impunity in Kenya and bring an end to the cycle of election violence would it be a worthy cause?
After asking myself all these questions, I convinced myself that cooperating with the ICC was the noblest thing and that I had to do it. It was a worthy sacrifice. Someone had to speak up for the victims. An injustice is the worst thing that can ever happen to a victim, especially when they know from the onset that they will never get a remedy. Victims are important stakeholders in the wheel of justice. I had to represent Anthony and so many other survivors and I had a personal responsibility to partner with the ICC in searching for the truth by presenting the victim’s perspective to the court. I knew I was representing many victims who did not know I was representing them. Children had dropped out of school because their parents had been murdered in cold blood, so many people lost their hard-earned investments when their businesses were set ablaze by arsonists and many families were left homeless when their houses were torched. I was serving God. I did not want any Kenyan regardless of tribe, suffer the kind of pain that Anthony went through. I was convinced that for the investigations to complete the victims had to tell their stories. Yes, I feared for my life, but I was raring to go on, nonetheless. Luckily, I was scheduled to join my family in the USA in a month. I prepared so that once I jetted back to Kenya from the Hague, I would immediately take off. I prayed that I would not be harmed before leaving.

My Testimony at the ICC
The date for travelling to the ICC was communicated to me. I was calm. I still had in memory my complete statement. It was going to be easy for me to remember events because to me the events of the 2007-2008 Post Election Violence left a very vivid impression in my memory.
I met in Nairobi with an ICC official who briefed me about the logistics of travelling. He explained to me the security arrangements that they had put in place for me. He told me that they feared that the government was monitoring my movement and communication so I could not travel through Jomo Kenyatta International Airport in Nairobi. I could not believe that my security concerns were being caused by my own government. The very government that had failed to protect my family when I needed it the most.
I travelled by bus two hundred and fifty kilometers to Arusha in neighbouring Tanzania where I boarded a flight to Dar Es Salaam Airport via Abeid Amani Karume airport in Zanzibar. I boarded a KLM flight and landed at Schiphol International Airport in Amsterdam, the capital of the Netherlands. All these logistical maneuvers were to ensure that I shake off anyone trying to follow me. From Schiphol, I was whisked off by an ICC driver to the Hague. Upon my arrival, court officials took me through all the required procedural preparations before I took the witness stand.
At the preparatory stage, I got a chance to meet and familiarize myself with William Ruto and Joshua Sang’s defense teams. I recall the towering figure of lawyer Katwa Kigen, who was representing Joshua Sang. I also met and talked with Lawyer Wilfred Nderitu, our victim’s legal representative.
I presented my testimony to Judges Chile Eboe-Osuji, Robert Fremr, and Herrera Carbuccia. Most of it in closed court sessions. Personally, I did not mind telling my story in open court because I had nothing to hide. But I felt obligated to protect my family in Kenya from harassment brought by supporters of suspects. I knew that if my identity was ever made public, it would elicit negative talk from supporters and this was going to intimidate and traumatize my family and further turn them into pariahs even though none of them were privy to my cooperating with the ICC, not even my wife Peninah and my son Anthony. I never disclosed it to my wife that I was pursuing justice at the ICC because I knew it would further traumatize her with concerns about my security.
During my presentation only Joshua Sang was available in person as William Ruto had been excused from the session. After narrating to the judges about my family’s post-election experience, I told the court I expected compensation for the loss of my business and all the expense I incurred moving my family and treating my son. I also told the court that at the end of the case the court should facilitate the costs of plastic surgery for Anthony.
After presenting my testimony and cross examination by defense lawyers, I was happy that someone had given me an opportunity to tell the suffering of my family in a court of law. I was satisfied that I had played my part in the process of seeking justice for survivors and victims’ now I did not have to suffer the guilt of silence for the rest of my life as would have been the case had I not participated.
As soon as I arrived in Kenya, I prepared to leave for the US. I had to leave as a matter of urgency because I feared that some of the Kenyans who I had met at the ICC may leak information about the encounter when they came back home. This fear caused me nightmares. Although I had been assured by the office of the prosecutor that everyone who I met at the ICC had instructions to conduct themselves with strict adherence to their profession’s ethical code of conduct, I still did not trust some of the lawyers.

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