By Felix Olick

Lawyers preparing to defend four Kenyans accused of crimes against humanity can now interview protected prosecution witnesses, but only with their consent.

International Criminal Court prosecutors can also interview defence witnesses under the same rules. This follows a court decision Friday on a deal on how to handle confidential information and how to make contact with witnesses the opposing  party intends to call.  ICC prosecutors have also been seeking more access to their own protected witnesses to prepare them for trials next year.

According to new rules announced by the ICC Pre-Trial Chamber V, all parties must submit all questions to potential prosecution witnesses through the ICC in writing, as well as a list naming everyone with whom the answers would be shared. 

Witnesses must be told why the information is needed and the possible consequences of giving it out. They can refuse to answer any of the questions or to be interviewed. 

These are just some of the tough guidelines set out to protect those getting ready to testify against Uhuru Kenyatta, William Ruto, Francis Muthaura, and Joshua arap Sang in March. 

The guidelines come barely a week after ICC Chief Prosecutor Fatou Bensouda claimed some witnesses have been intimidated or compromised and have declined to testify. She did not indicate which of the two Kenya cases was affected by what she described as the instances of “bribery, forced disappearances, executions and threats to life”.

Bensouda applied to the court for access to the protected witnesses ahead of the trials to ensure “adequate preparation”. 

Last month, ICC judges refused to release key documents or confirm the identities of three witnesses whose credibility had been questioned by Deputy PM Uhuru Kenyatta’s defence team.

Under the new rules, the defence team must put their questions to prosecution witnesses 4, 11, and 12 in writing through the Victims and Witness Unit (VWU).

Interview arrangements
The VWU shall seek the consent of the individuals on behalf of the court and make the arrangements for an interview.

But in doing so, the defence is prohibited from attempting to influence the witness’s decision as to whether or not to agree to be interviewed. 

In a decision published on Friday night, the ICC judges said witnesses must be told in advance on the nature of any information about them to be revealed, to whom it may be revealed, the purpose for which the information would be disclosed, and the possible consequences.  Led by Presiding Judge Kuniko Ozaki, the pre-trial chamber cautioned that both the defence and prosecution must act with caution.

“All parties and participants must be conscious of the possible danger that their inquiries may pose to witnesses, members of their family or others at risk,” they cautioned in their decision.

Further, defence teams have been prohibited from making inquiries relating to the current location of individuals, who have been assisted by ICC to move away from their initial place of residence.

“A party or participant shall not make inquiries relating to the current location of individuals who are participants in the ICC protection programme, individuals who have been assisted by the Court to move away from their initial place of residence or those whose location has been protected by the Chamber, without leave of the Chamber,” ruled the three judge chamber.

Uhuru and Muthaura face five counts each over the violence that rocked Kenya after the 2007 General Election. They are accused of murder, deportation or forcible transfer of population, rape, persecution, and other inhumane acts.  Ruto and Sang on the other hand, face three counts: murder, deportation and persecution.

The three judges held that a party or participant disclosing identifying information related to witnesses or their family members shall keep a record of all the circumstances in relation to such disclosure.

Protected witnesses
The records must contain the name and particulars of the person to whom the information was communicated, the name of the person who communicated the information and the date when this happened. Similar, the location where the information was communicated and the purpose for which the information was disclosed must also be recorded.

The judges held that the four Kenyans are obliged to inform Ms Maria Martinod-Jacome, the VWU Head of Protection, should the location of protected witnesses become apparent to them.

To further protect the identity of the witnesses, the judges said that identifying information contained in visuals such as photographs or audiotapes, which may reveal the identity of such witness should not be revealed. The parties and participants should only disclose such material where alternative modes of investigations have proved ineffective or are not feasible. 

Additionally, participants shall not disclose to the public any confidential material obtained in the course of the proceedings before the ICC. There are only exceptions when it proves to be necessary and inevitable for investigation or preparation of the case. But even so, such disclosure can only be done with the leave of the Chamber.

Bensouda had notified the judges that witness interference and intimidation has dealt a blow to her case since some witnesses with insider accounts of post-election violence have declined to testify.

“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 last week.

She requested the court to grant prosecution team an 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.