Updated Sunday, February 23rd 2014
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| 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Kenyan cases at the International Criminal Court have withdrawn, puncturing Ms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prosecution’s cases because among those who have withdrawn are what prosecution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.
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