ICC’s agony over key Kenyan witnesses

By ALEX NDEGWA

The International Criminal Court Prosecutor has conceded some key witnesses in the Kenya cases have been intimidated, compromised, or threatened with death and execution.  She warns these may undermine the two cases.

Consequently Ms Fatou Bensouda wants the court to grant prosecution team opportunity to meet with the witnesses ahead of the trial to reassure them of their safety, win their trust, jog their memories, reinvigorate their courage, and clear any inconsistencies in their evidence.  

She is seeking the opportunity to fortify the crimes against humanity cases she inherited from Luis Moreno-Ocampo, whom she deputised.  The cases involve four prominent Kenyans, including two presidential aspirants.

In legal terms what she is seeking is the platform to remove inconsistencies and contradictions among her witnesses that could be attributed to reluctance to testify four years after they offered to take the witness box for ICC. It will be an opportunity to refresh memories and catch up with what may have been lost, given how long it has taken the cases to start.

Bensouda warned if witnesses in the Kenya cases are not treated specially by allowing them to have talks with ICC lawyers prior to testifying in court, it is likely to compromise the prosecution’s case. 

“Given the prevalence of witness interference and intimidation, it is foreseeable that without adequate preparation, witnesses will refuse to reveal on the stand those matters that, in their view, are likely to expose them to increased risk,” she argued.  

Her specific request to the ICC is that lawyers who will lead prosecution witnesses during trial of four Kenyans be allowed to meet witnesses prior to testifying. In pushing for her request to be accepted she argues that in the Kenya cases, unlike the past ones where this kind of requests have been vetoed, has specific challenges.

Declined to testify

Bensouda protested rampant interferences, bribery, intimidation, and threats to life, forced disappearances and executions, which she concedes have caused some potential witnesses to develop cold feet and refuse to testify.

If the Trial Chamber V judges approve the application, during the preparation, witnesses will review their statements, clarify, respond to inconsistencies in prior statements, and access potential exhibits.

The witness familiarisation process, the prosecution argues, should reflect the “specific facts of the Kenya cases” and the “challenges faced by individuals who agree to testify as trial witnesses”.