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Passage of time not barrier to probing crimes – experts

She said it has been difficult to locate some complainants since they were displaced after the violence. In other instances, where victims recorded statements, most of them were not able to identify their attackers.

However, various lawyers have demanded that the country put in place an ICD to deal with international crimes.

Lillian Oduor, a representative of the DPP’s office, told an IWPR event in Nairobi last week that it would be difficult to re-open the cases because crucial evidence was lacking and many of the witnesses were not willing to come forward.

She noted that victims of rape had failed to obtain the necessary medical evidence at the time of the incidents.

“Some victims of rape never even went to hospital for examination and therefore we can’t get that medical evidence,” she said. “It is not that we are refusing to prosecute.

“Can we still go back seven years down the line and collect more evidence? That is the question still out there,” she continued. “Are these witnesses or the complainants or even victims willing to come forward and give evidence on these files? I am sure if there was evidence, we would be able to proceed with the cases.”

However, Mue pointed out that international prosecutors rarely view the passage of time as a barrier to investigating a criminal case, noting that Nazi perpetrators of genocide are still being pursued, and the international tribunal in Cambodia is prosecuting crimes that occurred decades ago.

Mue said it was not too late to start new investigations or to follow up on cases that might not have been properly investigated first time around.

It was still possible to collect the evidence needed to prosecute the cases, “particularly when villagers are still saying they know who took their cows… who burnt their houses and who raped them”.

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Despite the stance taken by the DPP’s office, an internal document from the Naivasha meeting on the establishment of the ICD, seen by Capital FM News, does not actually rule out prosecuting the post-election crimes.

“The ICD has jurisdiction to preside over the election-related violence crimes, and there needs to be justice for victims,” the document reads.

Nevertheless, Tobiko’s comments raise questions about what the point of the ICD project is, given that the court was originally conceived as a mechanism to prosecute cases from the 2007-08 violence.

Some are now questioning whether there is a need for the ICD at all.

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