Sureta Chana, 58, has been a lawyer for 38 years practising in Kenya, at the International Criminal Tribunal for the former Yugoslavia, and at present is the lawyer for victims in the first Kenya case at the International Criminal Court (ICC). Born in Kenya, she is a graduate of the University of Nairobi and George Washington University, from where in 1976 she earned a master’s of comparative law. She spoke with Tom Maliti from London about the first Kenya case at the ICC – The Prosecutor vs. William Samoei Ruto et al. – where she represents victims. In Part 2 of the interview she discusses her successes so far in the ICC case and the security concerns of victims.

In terms of the charges, in Case One are victims satisfied with the charges that are being sought or are they looking to the prosecutor to bring additional charges?

Definitely. I think if you see my filings in that regard that is one of the first issues I raised immediately after I was appointed. Because when I look at the charges and I look at what the victims have said in their forms, I immediately saw that every one of them talks about property damage. So obviously, those charges the prosecutor should actually charge them. And that is what I’m endeavouring to do and I’ve been filing motions to that end, is to make sure these charges can be incorporated under the umbrella of the prosecution as additional facts, additional charges. Because if it comes to pass that we’ve come to the end of the trial process and the reparations stage and if the accused have not been convicted of property damage then it will be very difficult to say that we can actually go after the accused persons themselves or the court may decide that you are not entitled to property damage reparations because no one has been convicted of that crime.

So that is one of my big battles with the court is to ask the prosecutor to add this additional conduct within prosecutions. And because it is agreed by all parties, including the defense, that this happened, these kinds of crimes happened, property damage, personal injury, violence. They all happened. Nobody is denying it. The only thing they are denying is that they are connected to it in any way. It’s the linkage they deny but nobody denies the crime base as it were. That it happened. So for the prosecutor to refuse to do it, it would be very perverse of him.

I had read your filings ahead of the confirmation of charges hearings and the request to add charges was the basis of one of the stories I was doing looking at different strategies different legal teams will be employing. I thought this was going to be now key to your legal strategy in terms of trying to get the issue at the hearings because when you applied the judge said, well at this stage we can’t deal with the request, but, at the hearings …

Yes, that’s right. So I renewed the request. Yes, and now this time it was granted to me. So that will be a little bit of a victory. I think I’ve had quite a few of those of which I’m pleased. I think no other legal representative has gone that far at the moment. And there’s also that filing about getting the confidential material and that I’ve been given the defense confidential Annex B. That is also very interesting that I managed to get that confidential which the other legal representative in (Kenya) Case Two did not get.

Is it your sense that it is because of the way you applied for it, or is it just that the circumstances are different?

No, I think the two are mirror cases. They’re both two sides of mirror. What it is, is I think I did not apply prematurely, and I gave a very strong basis for why I want to see it and I think it is important that you actually set that basis. And mine was a very bold move because I actually said that I want it because everybody is saying that the prosecution has not conducted their investigations properly. So I was very, very heartened to see the chamber actually gave it to me on those bases.

It’s interesting that you raise that question because that’s the question that keeps on coming up in conversations. From where you sit, are you satisfied with the case the prosecution has presented?

No. That’s why I asked what else has the prosecution presented because it was rather alarming to me when I heard everyone complain. And because I did not have the list of prosecution evidence I was in no position to assess it myself, which is why I asked for it. Now at the moment I haven’t physically got it. But when I do I will look very keenly through that and see what it is that the prosecution relies on. So yes, these allegations are not only made in the Kenya one case, they are also being made in the Kenya two case. And of course they are both Kenyan cases and from the same sort of crime base so it’s something that must be looked into.

Are you satisfied with the protection measures that have been provided for the victims and also for the witnesses?

Well, as for the witnesses I can’t say because they are not within my ambit because that’s the prosecution. And that again I don’t know without looking at the confidential Annex B of the prosecution evidence as to what kind of witnesses and where they come from. Of course, it will be heavily redacted but nevertheless I’ll be able to get some kind of a sense of the witnesses, what kind of protection they’ve got. But that is really the preserve of the prosecution.

And for the victims?

That is a problem because there are grave security concerns and every single victim wants to remain anonymous. And that is because they still feel in the Rift Valley those people who have returned to their homes, they still live in a very negative atmosphere. In the sense it is like a tinderbox. It can explode any time.

In Kenya, there is of course an atmosphere of tension. Everybody feels scared. So the only protection they have at this moment is they are anonymous. That their names have not been publicly spoken and that is one of the things that the chamber asked me to do, is to go talk to the victims and see what their security concerns are because the defence wants to know who they are. So, just the fact that they are anonymous is about the only security that they have. But there is a procedure in place, where if a victim can make a showing that there is imminent threat to him personally then there are also systems of relocation. But they are long and drawn out so it’s almost like not having but it’s there, technically. One can ask for that but it’s not done very often because you have to really show the most dramatic kind of imminent danger.

Are you concerned about security in terms of if a decision is announced in Case One but not in Case Two, and the decision in Case Two is delayed by a few days because there is a lag and technically it could happen that the two cases are decided at separate times?

Well, that is a very big issue. It’s something I’m very mindful of. The two decisions should be announced together. I know they are two weeks apart in the sense of the confirmation hearings. But I think it would be a great security concern if one case decision is announced and there is a time lag in the other. So this is something which I think I’m looking into at this moment. There is still some time until December but certainly it is an issue for me and my victims.