The Orange Democratic Party (ODM) minister from Rift Valley Province is believed to be among the 10 prominent personalities, whose names are in the Waki secret envelope, suspected to have funded or directed attacks against other communities.
Justice Phillip Waki, who chaired the commission that investigated post-election violence, handed over the list to Kofi Annan, who mediated a peace deal. Dr Annan, a former UN secretary general, handed over the Waki envelope to the International Criminal Court Chief Prosecutor Luis Moreno-Ocampo.
It is believed the Rift Valley politician, who was not in his constituency as the violence raged, sent several SMS to his key lieutenants who were instrumental in attacks.
The messages believed to have originated from his mobile phone could be detrimental to the ministers defence. They could be interpreted as instructions to kill or incitement to violence.
One of the messages seen by the Standard on Sunday instructs the youths to do all possible to root out the enemy. It is believed attacks in his region intensified after the message.
Mobile telephone service provider, Safaricom, could not however confirm whether the message was sent through the ministers phone or not.
A source at the company who sought anonymity said they could not store SMSs due to the many messages sent out daily.
However, it is believed the messages are contained in the handsets of individuals who could become potential witnesses. Our source said it is possible to track the origins of the messages.
“Currently all service providers do not have the capacity to store these messages because of their high volume,” said our source. “But if one has a message, we can follow the chain of a message to its originator.”
Messages to friends
Although most of these texts were primarily forwarded to friends, hundreds of them found their way into enemy handsets.
These are individuals who were targeted by the violence, and who could be potential witnesses.
It is, however, not clear whether these texts could be admissible in law in the event the International Criminal Court intervenes. It is expected that a local tribunal being fronted by a section of MPs will not have problem using them.
The signing into law of the Kenya Communications Amendment Act 2008, made it possible for SMS to be used as evidence in court.
The Act criminalises the generation and dissemination of offensive messages. As the use of mobile telephony and particularly SMS becomes ever more common and popular, questions are being asked about the potential of the facility to engender and promote violence. Although the use of mobile telephony in the political process is relatively recent, especially in Kenya, it has become one of the most effective methods of political communication, including the spread of hate messages.
Already, two people have been prosecuted for sending abusive texts, although for matters unrelated to post-election violence.
One person was charged with sending such a message in relation to the violence, but was later acquitted.
Opinion is, however, varied as to whether SMS evidence is admissible in court, and whether the ICC could use it to successfully prosecute perpetrators of post-election chaos.
“Electronic evidence is definitely a new phenomenon in Kenya, which has not been tried that much,” argues Nairobi-based lawyer James Rimui.
“But in law, evidence is evidence so long as it is credible. I do not know for sure if the ICC accepts electronic evidence, but I know that it accepts evidence from wide-ranging sources. So it is most likely that text messages will form part of the evidence.”
Colonel Joseph Kingori, a witness at the ICC for the Bosnian War Crimes trials, says that, “the ICC searches for evidence whenever it can be found. Although electronic evidence did not feature in my time, sources of evidence are expanding by the day.”
The Short Message Service was widely used in the run-up to the 2007 General Election.
It was used to disseminate hate messages against different ethnic communities and political opponents.
It is also believed that it was used to organise and direct attacks against other communities and spread rumours that fuelled ethnic hatred and political animosity, particularly during the chaos.
Despite the high number of SMS that were sent and the number of people involved, the Government to date has only charged one person with the offence of using SMS to promote ethnic animosities.
In May, last year, the Government charged an employee of a five-star hotel, Emmanuel Siundu Waya, of initiating and disseminating a hate message to six other people disparaging the President and some communities. He was later acquitted for lack of evidence.
Masterminds of chaos
However, it seems highly placed masterminds of the chaos might not be so lucky given the consequences of their actions and messages.
Some politicians have tried to absolve themselves from blame for the chaos that hit their constituencies, arguing they were not even physically present to co-ordinate attacks.
Most of them were in Nairobi monitoring the disputed presidential election.
But lawyer Steve Biko points out that there are many loopholes that can invalidate SMS evidence. He says it is difficult to uphold the credibility of electronic evidence.
“There has to be incontrovertible proof that the message was sent from the suspects handset by the suspect. This demands that witnesses admit, on their own volition, of sending the texts. I dont think it will be so easy to have them do this,” he says.
The likelihood of the suspects being tried at The Hague is growing by the day. This follows the Governments failure to convince Parliament to form a local tribunal for that purpose. Consequently, it is envisaged the ICC has already set in motion mechanisms to gather evidence in preparation to taking over the Kenya case.
Unconfirmed reports indicate some ICC investigators are in the country.
Principal sources of evidence are the victims, witnesses as well as media reports, especially photos and videos. Other sources of evidence include human rights groups and the civil society groups that have compiled own reports.
The US ambassador Michael Ranneberger revealed this week that the embassy has evidence against some of the suspects in form of video footage and phone conversations recorded at the height of the violence.
As a signatory of the Rome Statute, the Government is also under obligation to furnish the ICC with evidence collected by security forces. However, the ICC could also conduct fresh investigations.
The vice-chairperson of the Kenya National Human Rights Commission, Hassan Omar, says that the ICC has not formally requested for its assistance, although he anticipates it would do so once it intervenes.
“Of course, we anticipate that it will ask us to provide them with the evidence we have. I believe there is enough evidence to convict some of the suspects,” he says.
Standard on SundayPost published in: Uncategorized