The more than 4,000 post-election violence cases can not continue due to lack of evidence, the prosecution has said.
There was no evidence to prosecute the suspects locally, Ms Lillian Obwol, the senior principal prosecution counsel in the Director of Public Prosecutions office said.
“We are not refusing to prosecute. There is insufficient evidence to support charges. When we started handling these cases we were doing so under the penal code,” said Ms Obwol.
She said that it could have been easier to prosecute the 2007/08 suspects internationally given the threshold of evidence.
“We have been calling upon victims to come forward with evidence, but no one has done so.”
Ms Obwol spoke on Tuesday at Strathmore University in Nairobi during an international criminal justice week on “International Trials Under Scrutiny: Are prosecutions the key to accountability for mass crimes in Africa?”
Ms Betty Murungi, the chairperson of Akiba Uhaki Foundation and the vice-chairperson of the Kenya National Commission on Human Rights said the government had failed to address the concerns of victims.
“The government failed to come up with laws to guide the settlement of those affected by the chaos,” said Ms Murungi. She lamented that despite the fact that many Kenyans were displaced by the violence they had not been treated equally. Some were given money while others were not, she said.
Mr Macharia Gaitho, the chairman of Kenya Editors Guild, said by giving people money to buy alternative land, the State had helped to drive the agenda of the perpetrators of the post-poll violence.
“Despite President Kenyatta and his deputy William Ruto having agreed to work together, people in their areas are still living in fear,” Mr Gaitho said, noting that the evictees were not ready to abandon their land but had bought alternative plots where they can run to in case of another conflict.
“We are just sitting around and waiting for the next explosion (of violence),” I fear,” said Mr Gaitho.
The Editors Guild chairman said that the support Kenyans gave the ICC was no longer there and that the public had turned against institutions. “We are behaving as if it’s the ICC that is on trial in Kenya and now we are talking about justice according to our political leaning.”
Mr Gaitho said that those in Cord areas supported the ICC while those in Jubilee zones were opposed to ICC, even those affected by the violence in Eldoret and Nakuru.
Mr Serge Brammertz, the prosecutor for the International Criminal Tribunal for former Yugoslavia, said that the national and international justice systems had to work together as partners to address international crimes across the world.
“We have to make this initiative a partnership between the international criminal justice system and the local justice system in order to ensure that those who commit atrocities are brought to justice,” said Mr Brammertz.
Prof Alex Whiting of Harvard Law School said that countries across the globe had a role to play in ensuring that there was justice and urged the states to support the international justice project or it will fail.
“People ask: Why can’t we have justice everywhere? We should. We have to accept half a loaf of bread in hope we get full loaf eventually,” he said.
He warned that if there is justice or accountability, mass violence will happen again adding that there will always be pressures not to have accountability.
He said that the tribunals have had successes and people should be patient with them noting that it could take longer for the victims to release successes.
Lawyer Charles Kanjama said international Criminal Justice system is a breath of fresh air in countries where there has been widespread impunity but asked those involved to ensure that there is no selective justice.
He said that ICC relationship with Security Council is structural problem that needs to be dealt with so that all countries are treated equally including Syria, “Whole infrastructure of ICC is based on selective justice. Select those most responsible yet 95 percent of the suspects are walking freely,” he said.
2007/08 post-poll violence
The 2007 disputed presidential election led to violence across the country.
At least 1,000 people died and more than 600,000 were up-rooted from their homes.
President Kenyatta and his deputy William Ruto together with former broadcaster Joshua Sang have cases at the ICC.
The Director of Public Prosecutions took over more than 4,000 cases for prosecution locally.
In 2012 in Nakuru, Peter Kipkemboi Ruto was jailed for life for the murder of Mzee Kamau Kimani on January 1, 2008.
Mr Stephen Chamalan, now a Ward Rep in Uasin Gishu County, was acquitted in relation to PEV.