By Felix Olick
KENYA: The International Criminal Court (ICC) prosecutor Fatou Bensouda has suffered another setback in her case against President-elect Uhuru Kenyatta.
Just three months to the start of Uhuru’s trial on July 11 at The Hague, it is emerging that three prosecution witnesses have refused to testify against him.
Witnesses Number 2, 9, and 10 were among the 12 Bensouda relied on to have the charges against Uhuru confirmed by the ICC Pre-Trial Chamber II in January last year.
Recently, the prosecutor dropped another, Witness Number 4, in the case against Uhuru citing credibility issues after he recanted his testimony. This also prompted Bensouda to withdraw the charges against Uhuru’s former co-accused, Francis Muthaura, a former Head of the Civil Service and Secretary to the Cabinet. Uhuru’s lawyers and the prosecution have battled over the implication of the shelving of Witness Number Four’s testimony, with Uhuru insisting charges against him ought to be withdrawn too.
Trial Chamber V judges are yet to rule on the application by Uhuru’s legal team.
In the latest submission to the court, in response to earlier submissions by Uhuru’s lawyers, Bensouda discloses that Witnesses two, nine and 10 have changed their minds after having earlier expressed willingness to, citing security threats and fears of retaliation against their families.
Rethinking decision
In a detailed submission to the three judges of Trial Chamber V, Bensouda explained the circumstances in which each of the witnesses had balked.
“When the Prosecution contacted Witness Two on November 3, 2012, to confirm his availability to testify, he said he was rethinking his decision,” the prosecution says in the court filing dated March 28.
She added: “The Prosecution made several attempts to persuade Witness Two to testify, either as a Prosecution or as a Court witness, but on November 20, 2012, he informed the Prosecution that his decision not to testify was final.” The Prosecutor also said that Witness Nine informed her office on August 17, last year, that he was unsure whether he could continue to co-operate with her office.
The witness, Bensouda added, developed cold feet due to what she termed as “concerns about retaliation against his family from the accused persons”.
“On August 28, 2012, he indicated that he would testify only if he could do so completely anonymously, because he did not want to put anyone’s life in danger. He reaffirmed this position on September 15, 2012,” the prosecutor said in the submission.
During a psychosocial assessment early last year, Witness 10 had stated that he did not feel like testifying during the trials.
She said that the witness and his lawyer informed the prosecution they had received harassing telephone calls and wanted to withdraw his co-operation.
“When Prosecution representatives met with Witness 10 on August 15, 2012, to discuss his concerns, he stated that he did not want to testify for health and security reasons,” she explained.
Bensouda has insisted witness Number 4 was bribed to recant his evidence. The witness lied that he was present during meetings where retaliatory attacks were planned.
The dropping of the witness has now turned out to be the new battlefront between the prosecution and President-elect Uhuru’s defence team. Uhuru’s lawyers argue that confirmation of charges was based on false testimony and have petitioned the Trial Chamber to refer the case back to the Pre-Trial Chamber II for reconsideration.
The trial in the case against Deputy President-elect William Ruto and Radio Journalist Joshua arap Sang, which is scheduled to begin on May 28, also face similar challenges.
A witness lined up to testify in the Ruto case has since stepped down.
The truth
The witness, who comes from Rift Valley, wrote to the ICC prosecutor withdrawing evidence attributed to him. He asked to have his name removed from the list of prosecution witnesses.
“I have never personally visited any of the homes of William Ruto and I did not witness any event and cannot vouch for the truth or otherwise of any allegation that has been made or attributed to me against him,” said the witness in an affidavit, contrary to his earlier evidence.
But in a submission dated last week, Bensouda maintained that the Pre-Trial Chamber II did not rely on evidence provided by Witness 4 with respect to the infamous State House meeting.
“Even a cursory review of the confirmation decision demonstrates that the Pre-Trial Chamber did not rely on Witness 4’s evidence at all with respect to the December 30, State House meeting. Its findings were based on the evidence of Witnesses 11, 12, and six,” she said
Meanwhile, Common Legal Representative for Victims Fergal Gaynor maintained that the judges should not hesitate to make full use of the Court’s powers to compel the Government to provide the prosecution with critical evidence.
“In cases such as the present case, in which the prosecution has reported State obstruction in attempting to access relevant evidence, and unprecedented levels of witness intimidation…. “The Trial Chamber should not hesitate to make full use of its powers under Article 64(6) (d) and 69(3) to impose appropriate sanctions for any offences against the administration of justice,” said Gaynor.
Integrity or validity
He disapproved the withdrawal of charges against Muthaura, saying the reasons the prosecution gave cannot be allowed to stand as an incentive “to those who would seek to undermine the work of this Court through bribery, intimidation, and blocking access to relevant evidence”.
The victims’ lawyer also opposed a request by Uhuru that his case be referred to the Pre-Trial Chamber.
Gaynor maintained that the Trial Chamber has no jurisdiction under the Rome Statute to entertain any appeal or application for judicial review of the confirmation decision.
He said that Trial Bench has no powers to inquire into the fairness, integrity, or validity of the confirmation proceedings terming the request as a delaying tactic.
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