ICC rejects new evidence against Kenyan lawyer Paul Gicheru

Lawyer Paul Gicheru during an interview with The Standard Group reporters at his office in Nairobi on February 04, 2021.  [Stafford Ondego, Standard]

Prosecutors at the International Criminal Court (ICC) against lawyer Paul Gicheru suffered a major blow after their attempt to adduce more evidence through the backdoor was rejected.

Trial judge Maria Samba dismissed an application by the Office of the ICC Prosecutor to introduce new evidence without calling any witness to back up such evidence, ruling that the attempt was too late in the day when the case had already closed.

“Some of the evidence they seek to adduce are call data records dating back to 2014. The Chamber finds that the prosecution is barred from submitting the items. Accordingly, the items are not recognised as formally submitted,” ruled Samba.

Her decision was a win for Mr Gicheru who protested against the prosecution’s attempt to fish out evidence which he would have no chance to respond to after the end of the hearing. Mr Gicheru was under trial at the ICC over allegations of witness interference in crimes against humanity charges case against DP William Ruto and journalist Joshua Arap Sang as a result of the 2007 post-election violence.

After four weeks of hearings, the ICC prosecution closed its case on March 29 but on April 5 filed another application requesting a variation of the time limit to add five items to the list of evidence, to formally submit eight items of evidence omitted by their witnesses and to introduce prior recorded testimonies of some witnesses. But Gicheru through his lawyer Michael Karnavas objected to the introduction of evidence through the back door arguing that there was no good cause shown to vary the time limits to add the late-disclosed materials to the list of evidence.

On the prosecution’s requests for variation of time limit to add five items to its list of evidence and to file an updated list,  Justice Samba ruled that the prosecution failed to demonstrate that it was unable to file the evidence within the time limit. The prosecution’s submission was that the need to adduce the evidence arose after cross-examination of witness P-0730 and contained call data records of phone numbers attributed to Mr Gicheru.

“The Chamber is not persuaded that only following the cross-examination of P-0730 the existence and significance of the call data records have been placed in issue,” ruled Samba.