Questions linger on ICC witness withdrawals

By LILLIAN ALUANGA-DELVAUX

Kenya: Questions are being raised about the number of ‘prosecution witnesses’ who have reportedly distanced themselves from the Kenyan cases at The Hague.

Just days ago, International Criminal Court judges allowed the prosecution two new witnesses in one of the cases and turned away four.

Defence lawyers have until September 10 to prepare for the trial, parts of which could be held in Kenya or Tanzania to make it easier for victims, witnesses and suspects to attend proceedings. A team of 12 judges will vote on the venue.

There have been media reports of as many as 16 people opting out of the ICC proceedings.

The latest, a man represented by lawyer Paul Gicheru, claimed he had withdrawn testimony against Deputy President William Ruto in an affidavit dated May 9.

The witness has not been confirmed to be either a prosecution or court witness in the Kenya cases.

Sceptics say some claims of witnesses claiming they lied are just ‘pro-defence ploys meant to paint the prosecution’s cases as weak’.

“There is a possibility that a majority of the so-called witnesses reported to have recanted don’t exist,” says International Centre for Policy and Conflict (ICPC) Executive director Ndung’u Wainaina.

Others point out ICC prosecutors have no shortage of witnesses, as indicated during the last status conference when six new ones were proposed for inclusion in Ruto’s case. They also say the criminal consequences of a ‘withdrawal’ make it unlikely many would change testimony.

Some observers, however, say interference and intimidation has changed minds. At least nine prosecution witnesses have officially been confirmed in court as “unavailable for trial”.

Bribery claims In April, Prosecutor Fatou Bensouda told the court Witnesses 2, 5 and 10 in the case against President Uhuru Kenyatta would not testify at trial. This was in addition to Witness 4 who she had withdrawn earlier on claims of bribery. There were initially 30 witnesses against Uhuru and his then co-accused, former Civil Service head Francis Muthaura and former Police Commissioner Hussein Ali, when the case begun, but only a dozen (including 2, 4, 5 and 10) were relied upon at the confirmation stage.

The prosecution also said that five out of 41 witnesses in the case against Ruto and radio presenter Joshua arap Sang would also not testify at trial. These are believed to include Witness 8, who complained publicly about calls from ICC prosecutors between March 20 and March 22.

Contacted for comment, the Office of the Prosecutor said interference in the Kenya cases had been “unprecedented” but would not reveal whether they planned to take any action against those who recanted. Bensouda has previously taken issue with Kenyan media on reports of witnesses

dropping out of the cases terming them ‘sensationalist’.

The office reiterates that “it would not be drawn into any public speculation on the status of witnesses and that the office is working together with the Victims and Witnesses Unit to address witness tampering.”

Many of the so-called witnesses claiming to withdraw from the cases have made claims that appear aimed at undermining the prosecution’s work. Gicheru’s client, for instance, claims he was “coached by Kenyan human rights activists and ICC officials” to provide testimony about Ruto’s alleged role in the violence in Rift Valley.

He further claims he was promised he would be rewarded financially and settled abroad if he testified.

Dropped charges In March, Bensouda dropped charges against former Civil Service head Francis Muthaura in Case Two because a key witness had “admitted to receiving bribes” while others were too afraid to testify. This was believed to be in reference to

Witness 4, who allegedly lied in evidence used during the pre-trial hearings to confirm charges against Muthaura.

The following month saw Ms Bensouda’s office report that three more witnesses had refused to testify in the case against Kenyatta. With Bensouda on record talking of threats against witnesses and bribery as a way of dissuading or attempting to dissuade them there are now calls for her office to crack the whip.

“Witnesses who accept or obtain a bribe or other corrupt consideration to abstain from giving evidence are criminally liable,” adds Mr Wainaina. “This also includes witnesses giving false or misleading evidence.” Mr Godfrey Musila, research director at the African Centre for International Legal and Policy Research, says the lack of a reaction from the prosecutor’s office on some of those allegedly dropping out may be because they are not vital.

“If a vital witness withdraws, it could have adverse effects as was seen in Muthaura’s case,” says Musila.

“The dropping of a witness who basically supplements evidence presented by key witnesses may have no effect.” He adds that there were discussions about the bribery and intimidation of witnesses at the last status conference whose outcome is yet to be clear. “The matter was discussed in camera (in private),” Musila says. “This could point to ongoing investigations, which could result in action against persons intimidating or bribing witnesses.”

Musila, who was part of a team of legal experts appointed last year to advise the Government on the ICC’s decision to commit two Kenya cases to trial, says the fact that the prosecution hasn’t dropped charges against three of the original six suspects means they have enough key witnesses to rely on.