ICC Prosecutor Fatou Bensouda suffers serious jolt in Uhuru Kenyatta, William Ruto trials

Updated Sunday, February 23rd 2014

ICC Prosecutor Fatou Bensouda

By Isaiah Lucheli and Felix Olick Kenya: Nearly a half of the witnesses the prosecution lined up in the two Kenyan cases at the International Criminal Court have withdrawn, puncturing Ms Fatou Bensouda’s case. The ICC prosecutor had lined up 77 prosecution witnesses to testify against President Uhuru Kenyatta, his deputy William Ruto and Kass FM journalist Joshua Arap Sang. But of these, at least 30 have so far left the cases, according to an analysis by The Standard of official ICC records and reports about individuals who have sworn affidavits withdrawing as witnesses. On January 9, last year, Ms Bensouda had told trial judges the prosecution intended to call 43 witnesses in the Ruto-Sang trial.

In Uhuru’s trial, the prosecution had hoped to call 34 witnesses— 31 testifying on the facts of the post-election violence and three expert witnesses. The exodus has jolted the prosecution’s cases because among those who have withdrawn are what prosecution labels “insider witnesses” because their testimonies directly implicated the accused. Among those remaining are expert witnesses whose testimony is largely academic. Documents filed by the prosecutor show at least 10 witnesses, including those the prosecution says are at the heart of the case against the President, will no longer testify. Prosecutors have since admitted the case against President Kenyatta is on the brink of collapsing, with the stones left unturned having become pebbles, after testimony by three witnesses on an alleged State House meeting, which was instrumental in confirming the charges, was found to be false. Prosecutors admitted witnesses 4 and 12 gave false evidence about the alleged December 30, 2007 meeting at State House, Nairobi where retaliatory attacks on opposition supporters were allegedly planned. “P-0012 recently admitted that he provided false evidence regarding the event at the heart of the prosecution’s case against the accused,” Bensouda told the court. “P-0012’s account lay at the heart of the prosecution’s evidence, providing a critical link between the accused and the crimes in Nakuru and Naivasha.” Witness Number 4 was a Mungiki insider who lied he attended the State House meeting and the revelation prompted Bensouda to withdraw the charges against Uhuru’s co-accused, former Civil Service chief Francis Muthaura.

Bensouda admitted the withdrawal of another witness — P-001 — “undermined the prosecution’s case, removing evidence regarding the intermediaries who allegedly oversaw the attacks on the accused’s behalf, as well as evidence regarding the logistical support provided to the attackers.” Witnesses 4 and 11 had claimed that the Mungiki carried out the attack in Nakuru. Uhuru’s lawyer Stephen Kay told judges on February 14 the prosecution had repeatedly ignored the defence pleas that the three witnesses were liars. “We specifically pointed to the issues that have led to the collapse of this case against Mr Kenyatta — Witness 4, Witness 11, and Witness 12. We pointed out to the court that the main Witness 12 was a congenital liar, that Witness 4 was a congenital liar. No one listened to us,” Kay said. Kay spoke at the crucial hearing called to determine if the Kenyan government had stonewalled on turning over President Kenyatta’s financial records — the last piece if evidence that prosecutors desperately hope can keep their case alive. “We’ve made a decision that in the absence of the financial records, the remaining stones unturned are better characterised as pebbles, and the realistic prospect that turning them will yield real potentially conclusive evidence is minimal,” said prosecution counsel Ben Gumpert. Naivasha attacks Prosecution witnesses 2 and 10, whose testimony on Naivasha attacks was used in the confirmation of charges, and P-9, whom Bensouda claims developed cold feet due to “concerns about retaliation against his family from the accused persons, have withdrawn. Bensouda has dropped witness P-66 because she has objected to the disclosure of her identity for fear of reprisal and P-5 was no longer willing to testify at trial. Judges had permitted the prosecution to add P-66 to the list in October as a replacement for P-426 who had quit earlier. Prosecutors withdrew Witness 334 after concluding their evidence is no longer necessary to prove the prosecution case. Also, the number of witnesses who have withdrawn from the case facing Ruto alarmed the prosecution, prompting the issuance of an arrest warrant against a local journalist the prosecution accuses of corruptly influencing three witnesses. Walter Barasa unsuccessfully challenged his extradition at the High Court and has moved to the Court of Appeal. Bensouda is fighting to have the Government compelled to surrender seven “insider witnesses” who have refused to cooperate with the court.

These are P-0015, P-0016, P-0336, P-0397, P-0516, P-0524 and P-045, who fled from a hotel overnight as prosecutors were processing his Dutch Visa to travel to The Hague. In Ruto’s case, around nine witnesses who were to testify on the Kiambaa Church arson attack are among those who swore affidavits recanting their testimony. At least 10 additional witnesses were to testify on alleged planning of attacks. The first witness to withdraw in Ruto’s case was OTP 8 who wrote a 3,000-page statement, which the prosecution relied on to have the charges confirmed. The witness wrote to the ICC prosecutor stating that he no longer wished to testify against the deputy president. “I refer to the international criminal case number one in which you had listed me as a witness against the accused persons. I have now considered my position in the case and I no longer wish to testify against any of the accused persons,” the letter dated May 9 read in part. In a sworn and signed affidavit, the witness, a resident of Uasin Gishu County, explained that he made the decision voluntarily, “without influence from anybody.” Sworn affidavit OTP 2 also swore an affidavit narrating how his children had dropped out of school after the prosecution declined to pay for their education, despite having promised to do so if he agreed to testify. The witness claimed he was jailed for over a year in Netherlands after clashing with an ICC official over the statements that had been attributed to him, which he said had been exaggerated. Witness 0336 that had been working with as a programme officer with an NGO in the North Rift Region during the post-election violence, also withdrew from the case. He cited the prosecutor’s introduction of input by other parties such as Africa Centre for Open Governance (AfriCOG) and third parties among reasons for his withdrawal. Another witness who quit was an employee of Kass FM until April 2008. He was approached in October 2012 by an ICC investigator to be a witness by virtue of having worked at Kass FM.