By Felix Olick
KENYA: The International Criminal Court (ICC) will Wednesday lay bare the evidence it has against four Kenyans facing crimes against humanity charges at The Hague, even as two of the suspects scale up their presidential campaigns.
The prosecution is expected to disclose to the defence incriminatory material in the form of witness statements and evidence it intends to rely on during the trials that kicks off a month after an expected titanic presidential duel.
Also to be disclosed on Wednesday are the identities of witnesses that ICC Prosecutor Fatou Bensouda would line up against the suspects when the trials start on April 10 and 11.
Expected in Bensouda’s evidence are facts on the alleged State House meeting where Deputy Prime Minister Uhuru Kenyatta, former Head of Civil Service Francis Muthaura, and President Kibaki are said to have met members of the outlawed Mungiki sect.
During the pre-trial stage, Bensouda’s predecessor Luis Moreno-Ocampo convinced the judges that the alleged meeting convened to plan retaliatory attacks against perceived ODM supporters in Naivasha and Nakuru indeed took place.
Ocampo claimed that during the violence that preceded the bungled 2007 presidential polls, Uhuru controlled finances and the Mungiki, while Muthaura controlled Government machinery and security organs.
Former Police Commissioner Hussein Ali, who was acquitted by the court, is said to have acted as an assistant to the structure used by Uhuru and Muthaura to ensure PNU held on to power by attacking ODM supporters.
In their decision on the schedule leading up to the trial in July last year, the three Judge bench set on Wednesday for disclosure of the critical information.
According to the schedule, the prosecution will on Wednesday file a pre-trial brief; a document explaining with case reference the evidence the prosecution intends to rely on at trial.
The pre-trial brief must contain for each count a summary of the relevant evidence of each witness and clearly explain how the evidence relates to the charges.
As a result, the prosecution will also labour to justify their case against Eldoret North MP William Ruto and Radio Journalist Joshua arap Sang.
They are expected to justify their claims that attacks against PNU supporters in the North Rift, especially in Eldoret town, were planned as far back as 2006 and that Ruto and Sang were at the centre of the plot.
The prosecutor claimed that Mr Sang used his radio programme to collect supporters and provide signals to members of the plan on when and where to attack.
More than 1,200 people were killed and some 350,000 displaced after the botched 2007 General Election that nearly brought the country to its knees. Bensouda, who visited Kiambaa Church in Eldoret on November 26, last year believes that the burning alive of mostly Kikuyu women and children was deliberate.
However, there has been conflicting information, especially concerning the exact number of people who were in the church and those who died in the January 1, 2008 incident.
The crimes against humanity charges are facing leading lights in the Jubilee Coalition – Uhuru and Ruto who will this Saturday pitch tent at the historic Uhuru Park to drum up support for their bids.
Race to State house
The two are in the race to State House in the election scheduled for March 4, just a month before their trials at The Hague based court kicks off. The three-judge Bench led by Presiding Judge Kuniko Ozaki have also directed the prosecutor to include an estimated length of time required for each witness and the total time for the presentation of the prosecution case in hours.
“The prosecution is to provide its witness list, which should include a bullet-pointed summary of the main facts on which each witness is expected to testify, an indication of the estimated length of time required for each witness and the total time for the presentation of the prosecution case in hours,” ruled Trial Chamber V.
However, the judges provided room for delayed disclosure of the identities of some witnesses subject to an application by the prosecutor.
According to the schedule, the prosecution is supposed to disclose the identities of testifying witnesses who are part of the court’s protection programme by February 11.
However, for witnesses who are not part of the courts protection programme and therefore under more serious security threat, the Bench set March 12.
But already Bensouda has sought authorisation from the Bench to delay disclosure of identities of 15 key witnesses beyond the January 9, citing security concerns.
Out of the 15, six are expected to testify in the case against Uhuru and Muthaura while the rest apply to the case against Ruto and Sang.
Bensouda had raised the red flag that some key witnesses had been intimidated, compromised, or threatened with death and execution.
She wants to be allowed to conceal the identities of the witnesses until 30 days before the trial date or 30 days before the date they are expected to testify.
The identities of some of the witnesses Bensouda wants concealed are members of the Mungiki sect whom she says have insider accounts on the suspects orchestrated the violence.
“The insiders’ evidence is irreplaceable. Were they to be tampered with, it would substantially affect the prosecution’s case. This creates an incentive to interfere with the insiders,” argued the prosecutor in her application-seeking authorisation to extend the disclosure deadline.