Claims of witnesses in Kenya ICC trial 'disappearing'

Jane Waruguru Jane Waruguru's missing husband Maina Diambo is presumed to be dead

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As Kenya prepares for elections on 4 March and a month later a historic trial at The Hague over the violence that followed the disputed 2007 elections, the BBC's Karen Allen has heard powerful testimony about alleged disappearances of potential witnesses.

Jane Waruguru's husband was among those allegedly present at key meetings which form part of the prosecution case at the International Criminal Court.

Those meetings - allegedly hatched at State House in 2007 and 2008 - involved a criminal gang called the Mungiki. Jane's husband, Maina Diambo, was their second in command at the time.

"I saw big, large amounts of money," she recalls. "One day I came and I saw him washing guns and I was not used to seeing those things in my house."

'Tormented'

His erratic behaviour, his coming and going, aroused her suspicions, but she says she knew her "place" as a wife and her husband gave little away.

"I used to ask him: 'What is going on?' He told me: "You just shut up you wait... if you want to eat well, stay well, you just let me work."

Man wielding knife in 2007 violence There was widespread violence in the wake of the disputed 2007 election

It is alleged that the Mungiki gang was hired by senior figures in government, to execute a counter-offensive in the towns of Nakuru and Naivasha in early 2008.

Their mission was to avenge the first wave of attacks that had targeted members of President Mwai Kibaki's Kikuyu community, after disputed polls triggered inter ethnic-violence on an unprecedented scale.

But once the "job" given to Diambo's men had been completed, Jane sensed something was up.

Her husband was coming and going from their home, keeping strange hours, being collected in different cars. He was clearly agitated by it all, telling her: "I have done some things, they are tormenting my mind, and you are just asking me questions."

Diambo disappeared a month later. He is now presumed dead. A man who claims to be one of the last who spoke to him alleges he was due to collect cash at a meeting spot in Nairobi when he went missing.

Dozens missing

It is hard to independently verify Jane's extraordinary claims, but she is among dozens of women whose husbands have just vanished.

Paul Muite, a lawyer who represents many of these women, claims Diambo's disappearance matches those of other missing men:

Fatou Bensouda ICC prosecutor Fatou Bensouda has expressed her alarm at alleged attempts to interfere with witnesses

"Each one of them was involved in the post-election violence in Naivasha and Nakuru... they all disappeared without trace," he says. He claims the disappearances bear "all the hallmarks of an extra judicial killing" but his allegations will have to be tested in court.

What is clear is that alleged tampering with witnesses or those who may offer important leads about Kenya's violent past, is worrying the chief prosecutor at International Criminal Court (ICC) at The Hague.

In a candid interview with the BBC, Fatou Bensouda has expressed her alarm at "attempts to interfere with the witnesses".

Investigations in Kenya are proving to be "quite a challenge" she confesses and though she stops short of apportioning blame. She warns of "attempts to publish the names of witnesses or perceived witnesses in the media or on the internet".

And she says that those who tell us their stories "deserve to be protected, not only by the court but by Kenyans themselves".

Election test

The lawyers for Uhuru Kenyatta, a presidential hopeful, and one of the four accused who deny the charges levelled by the ICC, has called for the trial to be postponed.

They say a key witness has recanted his testimony linking Mr Kenyatta to an organised crime gang.

Kenya's Chief Justice Willy Mutunga on why he thinks the elections will be different this time

Talk of witnesses disappearing and plots hatched in secret may sound like the stuff of fiction but Kenyans have been burdened with a history of impunity that reformers are now trying to address.

One of the champions of change is Kenya's Chief Justice Willy Mutunga. A human rights lawyer and former exile he has been in the job for a year.

Despite his informal style, bodyguards shadow him everywhere he goes.

He is an optimist and believes that "Kenyans will emerge from these elections more united".

The country has ushered in a new constitution, and other institutional changes designed to break the stranglehold of ethnic chauvinism that has tainted politics for the past half century.

In previous elections, the key to success for politicians was to campaign along ethnic grounds and stack courts with pliant judges.

So the big test is whether election disputes are taken to the newly reformed courts, rather than out onto the streets this time.

"If any disputes are not brought before the Supreme Court, then the public confidence in this institution will be dented," Mr Mutunga says. "And I don't know whether that damage will be repairable."

For millions of Kenyans so much rides on this election. Little wonder then that it is being dubbed a milestone that could radically alter the way politics is done here in future.

Watch Karen Allen's Newsnight report on an election that could again expose Kenya's ethnic divide in full

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