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”.
Bensouda acknowledges witness interference and intimidation has dealt a blow to the prosecution since some witnesses with insider accounts of post-election violence have declined to testify.
To argue her case she states multiple witnesses report being offered bribes or threatened not to co-operate with the prosecution.
There have also been efforts to expose the identities of protected witnesses, she says. “Many potential witnesses expressed fear of being harmed or even killed if they co-operate with the prosecution, and several declined to testify on this basis,” Bensouda states in court records disclosed on Monday.
“This fear is exacerbated – particularly among insider witnesses – by post-election violence (PEV) murders and forced disappearances of individuals with knowledge of the role of the accused in PEV,” she added.
Against this backdrop, Bensouda stresses the importance for counsel to adequately meet with witnesses prior to their testimony to assure them of measures taken to ensure their security. “It is also important to have the opportunity immediately before a witness’ testimony to inquire, as to whether the witness has been interfered with since his or her last contact with the calling party,” she added.
Bensouda explained circumstances in previous cases allowed greater personal contact with the witnesses outside The Hague than is practicable in Kenya cases. “To avoid exposing these individuals, the prosecution cannot meet with them in their communities and must keep contacts with them to a minimum,” she states.
The prosecutor noted witnesses in Kenya cases therefore have little interaction with the prosecution after their initial interviews.
This, she added, means they will first meet the lawyer who will question them in court only when the witnesses arrive for testimony next year – five years after post-election mayhem. The prosecutor contends a 10-minute courtesy meeting, is inadequate for counseling and establishing rapport.
Yet the principal protective measure for many witnesses is the confidentiality of their co-operation with the prosecution, Bensouda added.
She stated ICC witnesses assume significant personal risks that include physical, psychological or economic retaliation from opponents, family pressures or accusations of treachery or ostracism.
“The period immediately prior to witnesses in-court testimony is the moment at which witnesses most need reassurance regarding the process upon which they are embarking, and the risks they may be taking,” Bensouda argued.
Review of topics
She added: “That is the time when witnesses need to ask questions the lawyer tasked with eliciting private and traumatic information from them in court.” It will facilitate review of witness statements and clarification of additional points or retractions the witness may deem appropriate.
It will also enable review of topics to be covered in examination and the likely topics of cross-examination.
The prosecution is seeking the waiver to show potential exhibits to the witness and answer questions the witness may have, including about what to expect in court.
It contends there are adequate safeguards to prevent witness coaching or the rehearsal of testimony, which are grounds judges cite when denying similar requests.
The prosecutor acknowledged the witness preparation may lead to disclosure of additional information shortly before a witness testifies, which may disadvantage other parties. She, however, pointed out one of the judges had argued the Chamber would regulate the in-court use of new information obtained before testimony to ensure fairness.
