TRANSFER UHURU, RUTO ICC CASES TO KENYA - CHINA

Thursday, September 19, 2013 
BY NZAU MUSAU AND OLIVER MATHENGE

LORD HEAR OUR PRAYER: Jubilee MPs seek divine intervention outside the ICC court yesterday. Photo/REBECCA NDUKU/DPPS

CHINA yesterday called on the International Criminal Court to heed the pleas of African nations over the trials of President Uhuru Kenyatta and Deputy President William Ruto.
"We have noticed that there are different voices in Kenya on the ICC trials, and that quite a few African nations have raised serious questions about the trials," said Foreign Ministry spokesman Hong Lei at a daily news briefing.
Uhuru and Ruto were elected by Kenyans in a free vote, Hong said, adding that the African Union summit in May urged the ICC to transfer the trials of Kenyan leaders to Kenya.
"We hope the international community will respect the Kenyan people's choice, and the ICC will heed the advice of African nations and the African Union," he said.
Yesterday Amina Mohamed, Cabinet Secretary for Foreign Affairs, told the BBC that Uhuru Kenyatta and Ruto should not face trial at the ICC in the Hague.
Amina told Hard Talk's Zeinab Badawi that Uhuru and Ruto have the full confidence of the electorate and have "relentlessly" sought to reconcile the different ethnic groups in Kenya since 2008.
Meanwhile Kenyans were last night facing the possibility of being blacked out of the ongoing ICC trial of Deputy President William Ruto and broadcaster Joshua arap Sang.
Increasing concern over the protection of witnesses led ICC prosecutor Anton Steynberg to apply for increased protection of all prosecution witnesses including testifying in camera.
But defence lawyers Karim Khan and Katwa Kigen denied that the witnesses were at risk and argued strongly that the case should remain open.

Yesterday morning the court went into private session to discuss the implication for witnesses of Kenya's parliamentary motion on September 5 to withdraw from the Rome Statute.
The decision to go into private session was prompted by viral messages on social media on Tuesday afternoon revealing the identity of Bensouda's first prosecution witness in the Ruto case.
The voice and face of witness PO536 were distorted and digitized for the general public and only the judges, prosecution, defence lawyers and suspects could see her in court.

"There are some serious issues that the prosecution wants to raise," presiding judge Chile Eboe-Osuji said as the morning session kicked off. The court was then forced to go in camera for the entire morning session.

The court had been scheduled to take oral submissions on the implications for witness security of Kenya's motion to withdraw from the Rome Statute.

The Kiambaa arson witness was also due for cross-examination. When the afternoon session came, presiding Judge Eboe-Osuji warned that the court will take action against anyone interfering with witnesses.

"Any revelation of the identity of a witness who has been protected by the court amounts to an offence against the court. Let any Kenya, members of the press, social media users and participants that any action that may lead to revelation of witnesses will be investigated and prosecuted,"  Eboe-Osuji said.

He said that intimidation or interference qualified contempt of court and could lead to prosecution. Witness 536 on Tuesday gave a moving narration of how Kiambaa Assemblies of God church was burned down by armed youths on January 1, 2008.

Kenyans on Twitter, Facebook, blogs and other online platform immediately began discussing her possible identity and poking holes into her testimony. Several individuals and blogs circulated her photo and questioned her evidence.

In the afternoon session, Steynberg specifically applied to have all prosecution witnesses given extra protection owing to the climate of fear instigated by the ICC withdrawal motion.

In-court protective measures include redacting witness names, prohibiting dissemination of information emanating from such witnesses to third parties, alteration of voices, pictures and use of audio visuals to testify, pseudonyms to refer to witnesses and last and most important, the holding of the in-camera sessions.

Steynberg said the effect of the Senate and National Assembly motions was to intimidate witnesses. “This forms part of the larger culture of intimidation which is pushed by certain quarters of the Kenyan society but now at higher echelons of Kenyan society,” he said.

He said two witnesses withdrew citing the Parliament resolution and fears that they may be isolated. Defence lawyers Karim Khan described the move as “ a complete 360 degrees turn” from openness to secrecy.

“The discussions of the Kenyan parliament have no relevance on this matter. The whole international community wants a vibrant democracy and parliaments that work,” he said.

Both Khan and Kigen quoted senators stating that Kenya would continue to cooperate with the court and that the current cases would not be affected by the withdrawal.

Khan said the US and India are not members of the ICC yet they are not pariah states as Steynberg claims Kenya would become. Judge Eboe told Khan that the US and India did not have high ranking officials charged at the ICC in their individual capacities.

The presiding judge repeatedly asked Khan and Kigen to address whether the withdrawal had a chilling effect on witnesses. "The fact that I am here as the democratically elected Deputy President of the Republic of Kenya is a confirmation that Kenya believes in the rule of law and belongs to the league of nations," Ruto told the judges.

"The concerns of the witnesses are not subjective, they are real. Both Houses are in so many words telling witnesses that participating in the proceedings leaves them victims on their own," said victims lawyer Wilfred Nderitu.