ICC WITNESS PETITION TO THE COURT

The Trial Chamber Five,

RE:WITNESS PETITION TO THE COURT

YourHonours,

My full names are Samuel Kimeli Kosgei. I am a maleadult individual of sound mind and a resident of Nandi County in the Republicof Kenya. I am one of the witnesses whose alleged testimonies the prosecutor’soffice used in obtaining a confirmation of charges in the first Kenyan case pendingbefore this court. I am aware that the prosecution presented a total ofapproximately 3, 000 pages of evidence which they attributed to me when thecase came up for confirmation. The case before the trial chamber was thereforeconfirmed on the basis of my purported testimonies and those allegedlyattributed to prosecution witnesses No’s.1, 2, 4, 5, 6 and 8.

I withdrew as a witness from the first Kenyan caseby a sworn affidavit dated 7^th February 2013which was forwarded tothe prosecutor’s office by my advocates on 19^th February 2013 Myadvocates forwarded three additional affidavits to the prosecutor’s officeindicating my position and that I had withdrawn from this case voluntarily.These additional affidavits were sworn on 16^th March 2013. (Attachedhereto are copies of the four affidavits for your Honours attention).

The office of the prosecutor has however failed toconfirm to me or my lawyers in Kenya whether they received the affidavits orthat they have since removed my name from the list of prosecution witnesses.The office of the prosecutor however continues to regard me as a prosecutionwitness when I am not and this has now constrained me to directly write to thechamber for the purposes of raising some issues that may be of interest to thecourt and the parties to the matter now pending before this court. I have thegreatest respect for the Judges of this court and my decision is informed bythe need to preserve the dignity of the court as an institution. These concernstouch on the process and the manner in which my alleged statements wereobtained/extracted by the investigators and the office of the prosecutor andthe events that occurred prior to the confirmation of the Charges.

I do this in appreciation of the fact that the RomeStatute whose contents I have familiarized myself with over time requires thata trial must be based on truth and that there must be impartial investigations.The issues I wish to bring to the chamber’s attention are the following:-

a)   Iwas approached by the Office of The Prosecutor (OTP) to be their witness inthis case in the year 2010 and I was designated as witness number 8 during theconfirmation hearing and as K15 by V.W.U. I am aware that several other peoplewere recruited as witnesses. The office of the prosecutor never conducted anyinvestigations on the ground as the basis for what they are calling mytestimony.

Upon recording the alleged statements, theinvestigators handed over the written statements which they had already typed tome with instructions that I should read the statements back to them for the purposesof obtaining an audio recording of the statements. This was meant to givecredibility to the written statements by giving the impression that therecording was being done as I was giving testimony in the first instance.

b)   Mystatement which is lengthy contains matters which I have no personal knowledgeof and the Office of The Prosecutor (O.T.P) /the investigators inserted intothe statements numerous allegations that are attributed to me but which areplainly false. The statements were altered from time to time to suit and coverwhat the office of the prosecutor considered relevant to them for the purposesof obtaining a confirmation and later convictions. I have for example neverbeen to any of the accused person’s houses, I was not present in any of themeetings attributed to me in the statements, I did not see any guns distributedand I did not witness any oathing taking place. Yet the statement alleges thatI am a witness of fact on these issues. These allegations were deliberatelyinserted into my statement.

c)   I amaware that the Office of The Prosecutor (O.T.P) and the team that was assignedto carry out investigations into the 2007 -2008 post election chaos madevarious audio recordings of the statements they allegedly took and which theyinsisted I should read back to them for the purposes of recording the statementsin Audio form. This happened in Arusha and later in Netherlands.

Itwould be a matter of interest to the chamber for the prosecution to produce theaudio tapes/recordings done in Arusha and those done in the Netherlands for thecourt to compare and make a finding on whether the contents of the two sets ofrecordings are the same.

ThisI believe will shade light into the accuracy of the statements that have beenattributed to me by the Office of The Prosecutor (O.T.P) and will furtherdemonstrate the issues I have talked about above.

d)   AfterI and the other witnesses arrived in the Netherlands and prior to theconfirmation hearing, the prosecutor’s office organized several meetings whereI and other witnesses were called into various hotel venues and were instructedto change our evidence so as to corroborate each others testimonies. Thesemeetings were held on among other dates on 6^th, 7^th and 8^thJune 2011 at the Holiday Inn Hotel in Laiden where the proceedings of the daywere conducted by one Alex and Emma, on 27^th July 2011 at the VanDer Valk Excrusief Hotel and on 29^th August 2011 at the MercureHotel in Amsterdam. The last meeting lasted for the whole day. The meetingswere held in my presence and that of other witnesses whose statements were usedto confirm the cases. The attached extracts from my diary which I bought inNetherlands together with the attached photographs and extracts which weretaken and or recorded in the several Hotel venues are proof of what I amsaying.

During these meetings we were coachedon how to deliver persuasive testimony in genocide cases, how to maintaincredibility among many other things.

e)   Someof the material/Statements allegedly attributed to me were at times induced byfraud and undue influence. One of such incidences occurred on 22^ndFebruary 2013 at The Kivi Hotel in Nairobi. I was on that day invited to theHotel by two investigators a Mr. Paul and Mr. Silvan and requested to attend ameeting at the Hotel. I was accompanied by my wife to the meeting. When I andmy wife arrived at the Hotel on that day I was offered a bottle of Scotchwhisky and one packet of Malboro light Cigarettes from the Netherlands by Mr.Paul.

The two had called me so that theycould confirm the circumstances under which I had sworn the affidavit dated 7^thFebruary 2013 but this intention was not disclosed to me at the onset. I washowever first treated to a bottle of Scotch whisky and Malboro light Cigaretteswhich were given to me by Paul who is well known to me before the interrogationstarted. The interrogation was therefore being conducted while theinterrogators knew that I was under the heavy influence of alcohol which theyhad themselves bought and offered to me without disclosing that they would becarrying out interrogations.

Welater met with the same people on 28^th February 2013 on the sameissue of the affidavit but this time round they wanted to interrogate my wife.

Iand my wife were given the sum of Kshs.50, 000.00 in cash as accommodationexpenses on 28^th February 2013 which was the last day of the monthof February. The two met us the next day on Friday 1^st March 2013and gave us a further sum of Kshs.373, 000.00 in cash as pocket money and laterthe sum of Kshs.19, 000.00 through Mpesa by one JACOBUS JOUBERT. MR. JACOBUSlater send us the sum of Kshs.22, 000.00via Mpesa transaction DF55PJ476 on7/3/2013. My wife who was present when all these events were taking place canconfirm the above events.

Idon’t know whether the investigators made any written audio or visual recordingof the proceedings of the two days and if they did, they were doing so whilethey had caused me to be intoxicated. This is not surely how an interrogationsession should be conducted and evidence collected.

f)     Iwish to make it known to the chamber that immediately I voluntarily withdrew asa witness in the first Kenyan Case through an affidavit sworn by me on 7^thFebruary 2013, the O.T.P has attempted to contact me on numerous occasions witha view to cajoling, inducing and even coercing me to stand by the truth oftestimony which they attribute to me but whose truth I cannot vouch for since Ihave no personal knowledge of the allegations in it. I received a total of over20 telephone calls between 20^th March 2013 and 22^nd March2013 from the International Criminal Court (ICC) trial Attorney Lucio and aperson who appears to have been in his company through mobile phone numbers0705242859 and 0711755319. There have been numerous attempts by the prosecutionto contact me over this matter either through the phone or through emissaries.

This has continued happening inspite ofthe fact that I have a lawyer who has been corresponding directly with theoffice of the prosecutor. I am buffled to this day by the apparent desperationand the reasons why the prosecutor wants to induce, intimidate and cajole me.This has made me fearful and apprehensive of my safety and that of my family.

g)   Theother outstanding aspect of the first Kenyan case is that all the witnesseswhose statements were used in confirming the case were members and or agents ofthe party in National Unity. Almost all of them come from Kaptebee Location.The others come from Uasin Gishu District. It cannot therefore be a coincidencethat all witnesses can be party agents from one location and or withinlocations which are proximate to each other and within one or two counties.

h)   Ihave considered the issue of the court’s standing vis-à-vis the conduct of theprosecution on matters relating to the Kenyan cases. I have a lot of respectfor this chamber but I am afraid that the above events relating to me may bringthe standing of the court into bad light unless the matters are fullyinvestigated. I am personally aware that my alleged statements were not as aresult of any investigation. The office of the prosecutor instead of carryingout investigations looked for and used individuals to procure witnesses,present them to officers from the office of the prosecutor or to investigatorswho had a pre-determined evidential position on the matters they wereinvestigating. The investigators then coached, coerced, induced, changed andtailored evidence to fit particular circumstances in order to secure aconfirmation of the charges and secure a probable conviction at the end of thetrial. That explains why witnesses in the same case were invited and were allpresent together in one Hotel Venue to review the case as I have stated above,that also explains why I was induced through intoxication first before an interrogationwas carried out and that is why the prosecutor’s office is so desperately lookingfor me to testify inspite of my clear position on this matter.

Your Honours, I am ready to address thechamber via video link from Kenya and clarify any of the above and otherissues. A video link from Kenya because I fear for my life and security borneout of the above past events particularly the events which occurred since afterI withdrew as a witness from this case.

I hope that this Petition which I have instructedmy advocate to forward to you through the court registry and copied to all theconcerned parties will reach you the Honourable Judges of the trial Chamber forthe purposes of establishing the truth about the Kenyan Cases.

Yours faithfully,

SAMUELKIMELI KOSGEI,

Cc

The Prosecutor,

InternationalCriminal Court,

THE NETHERLANDS.

The office of publiccounsel for Defence

THE NETHERLANDS.

M/s Gicheru & Company

Advocates,

P.O. Box 1342-30100,

ELDORET-KENYA.    
(This Petition is forwarded to you as my advocate for your attention and records)