By Wahome Thuku

An attempt by the State to adopt the International Criminal Court’s practice of concealing witness names and evidence has hit a snag.

Nairobi Principal Magistrate Lucy Nyambura ruled on Monday that the prosecution had to disclose information to nine corruption suspects well before the trial dates.

Lawyers had differed on whether the State could be allowed to withhold names and statements of witnesses in the case against Mr Billy Indeche, Mr Dennis Apaa and seven others.

Mr Indeche is the son-in-law of Water Minister Charity Ngilu while Mr Apaa is husband to Tourism Assistant minister Cecily Mbarire.

The defence team led by lawyers Andrew Musangi and Kioko Kilukumi had objected to the testimony of several witnesses whose statements were only made available on Monday morning. Some of the statements were recorded last month and bore no names of the witnesses.

Conspiracy

The nine accused are charged with conspiring to defraud the Water Ministry of Sh26.4 million, on diverse dates between January 2009 and September 2010.

Others are water officials Samuel Aluoch Otieno, Robert Mati, Joseph Mucuku, Mwagambo Mwang’ombe, Lawrence Simitu and Isaiah Amwanzo Benjamin.

They were charged in September last year. The Kenya Anti-Corruption Commission investigators claimed statements had been concealed because the accused had threatened some witnesses.

Lawyers, however, said the move by the State was a violation of suspects’ rights under Article 50(j) of the Constitution to inform the accused in advance of evidence against them.

They described the prosecution’s conduct as ‘trial by ambush’ and asked the court to reject all new witnesses.

Musangi said the prosecution was intent on proceeding with ghost witnesses and new material, accusing it of recording new statements from witnesses to fill gaps emerging in the proceedings.

Disclosure

State Counsel Lilian Obuo had argued that even the ICC had accepted that names of witnesses could be withheld and released in the course of a trial. "Disclosure of evidence should continue throughout the trial and even the ICC has held this," Ms Obuo submitted, adding that Kenyan laws also provided for protection of witnesses.

But lawyers took issue with the remarks and rejected arguments that disclosure of evidence should continue throughout the proceedings.

"The reference to the ICC proceedings can only have been informed by what she (Obuo) watches on TV," said Musangi, noting that ICC procedures could not override the country’s constitutional provisions.