ICC prosecution, defence in heated debate on hiding of witness identities

Deputy President William Ruto and his wife Rachel among other Kenyans who travelled in solidarity with him to The Hague hold hands as they pray outside the court at The Hague in the Netherlands, Wednesday. [PHOTOS: PIUS CHERUIYOT AND BONIFACE THUKU/STANDARD]

The Hague

Deputy President William Ruto’s lawyer Karim Khan in the ongoing trials made a strong case about having the witnesses give their evidence in public in his submissions, where he was opposed to having all sessions in camera. He was responding to a request by the prosecution that the witnesses’ safety would be compromised if they give their evidence in open court.  Presiding Judge Chile Eboe-Osuji started the open court session with a tough warning to any people that may be exposing the identities of the witnesses, directing that culprits would be prosecuted.

Here are the proceedings.

“Participants are particularly called upon to desist from doing anything that would reveal or attempt to reveal the identities of protected witnesses, or to engage in secondary dissemination of such wrongful and illegal information. Such conduct would be investigated and the culprits would be prosecuted.

“We would now proceed with the matter of the submissions regarding any further measure for witness protection in the courtroom as indicated in yesterday’s proceedings.

“The chamber would now take submissions which would lead us to relate to the factual record of the matter as regards whether in fact anything was done in Parliament of Kenya, if so what and when was this and why was this.

“The matter was raised by the first counsel, as to the why of it, and the why of it is in connection to whether any such development having any bearing on witness protection matters.”

Anton Steynberg: In dealing with the factual issues first of the what and when: The timeline of developments is that on September 5, the National Assembly called for a special session to debate a proposal to put before Parliament a Bill aimed at inter alia to withdraw Kenya from participation in the Rome Statute and the ICC. (Tables copy of Notice order of sitting.)

“To repeal International Crimes Act, and to suspend any links, cooperation and assistance to the ICC, this House resolves to introduce a Bill within the next 30 days to repeal the Act No. 16 of 2008, and that the Government urgently undertakes measures to withdrawal from the Rome Statute and the ICC adopted by the UN conference in 1998. It was resolved to table the Bill within 30 days.

“The matter was placed before Senate on September 10, and again it was ruled there should be immediate commencement to conclude Kenya’s plan to withdraw from the Rome Statute and ICC.

“My understanding is that the process will proceed as follows; within the allotted period MPs would place before both Houses the Bill that would be debated and if passed, it would be placed before the President to become law. I am aware there is some debate in the legal circles on whether it was a matter of the people, the Executive or the Constitution

“We are dealing with the what and when. The majority (Jubilee) would be best placed to explain the why.

(Quotes Kindiki) “What has happened is that a few people from NGOs’ world decided to convert the misery that befell our country into a money-minting event where a few have been used by foreigners to cook up stories.

“This is how it affects our witnesses: It appears the version of the reality is being used in particular as the rationale for this debate, and forms part of a larger culture of intimidation, and has now reached the highest levels of the Kenyan authority. This development is indeed relevant to the issue of witness protection.

Does this measure from National Assembly and Senate have a bearing on this case?

Steynberg: The resolution by Senate, to continue to co-operate with regard to on-going cases before ICC appears to show recognition of the obligation; to that extent it is reassuring. And we have reason to believe that in the near future the co-operation would be tested, and hopefully I would be proved wrong and I am pessimistic by nature.

“I had on a previous occasion said that two of the witnesses that have been contacted had cited the development in the Kenyan Parliament as reasons that have caused them great concern, one of them indicated the concern that if the law was passed he would be living in a pariah state, in which international law does not apply, in which case he would have no protection. We, however, try to reassure them that the ICC would still take measures to protect him including, if necessary, moving him to a non-pariah State, in his terminology.

“We are doing our best to continually reassure them of their protection.

“It is clearly in the eyes of the witnesses that the matter is of grave concern, to add to the other concerns relating to the disclosure of their identities that many have already communicated to us.

“In the present circumstances, the prosecution submits that the chamber has sufficient grounds to reconsider its earlier decision not to grant an advance omission for the witnesses requested in the first ten witnesses as they then stood.

“It is our request that the chamber should rule in favour of protecting the identities of the witnesses for whom the application is pending, unless there is reason not to.

Judge: Would the developments in the Kenyan Parliament override the need for individualised assessment of each witness for purposes of witness protection in the courtroom when you say such measures should be granted to every witness?

Steynberg: Cumulatively, together with evidence that is being brought to the attention of the chamber of ongoing attempts of interfere, to bribe witnesses, exposure of the identity of witnesses and the developments of the Kenyan Parliament, these are measures that affect all the witnesses residing in Kenya. It then means that the witnesses would require protection measures unless individual assessments show otherwise.

Karim Khan: In our submissions, there is no merit at all in the prosecution’s contentions. One only looks at Article 67, which relates to reversal of the burdens; it relates to any other rights, the prosecution needs to  prove that a measure is necessary. It is clear that the defence has a massive interest in this because we say that while lots of individuals suffered in Kenya, the prosecution has chosen through error or omission or other reason core witnesses that are lying and we have a clear right that those witnesses give evidence in public unless there are exceptional circumstances.

“(In regard to) the proceedings in the National Assembly of the Republic of Kenya on September 5, and the proceeding in the Senate on September 10,  this is not the first time this issue has been debated in Kenya and it not the first resolution either that is being passed.

“And yet for the previous year, the prosecution has been silent. The court needs to be wary of attempts by the prosecution to raise this falsehood to distract what we say is an absolutely unworthy case. It is in the public domain that there were previous proceedings in the Kenyan Parliament.

“There is no relevance whatsoever to this whole matter. The international community wants a vibrant democracy, it wants a Parliament that works, and that is robust, that has candid discussions and the subjective concerns of the victims and the witnesses are of marginal relevance to determine the core issue which is the presumption of secrecy.

In assessing whether or not there is any foundation or substance for this application, it is fair for the bench to look at how the prosecution framed their submission. What struck me was that a very key piece of information was drawn out from the prosecution because you had the wisdom to point the prosecutor in some particular direction.

The Senate is saying they would continue to co-operate with the ICC. The Senate wants urgent petition to the ICC on video conference in legitimate concerns of having the President and his deputy be heard and not to be away at the same time.

The reasons for the motions are simple, the concerns are simple. You have no mechanism of controlling a prosecutor who is unsupervised and through his own whims to drag people through long and expensive processes, without any forms of compensation even when they are acquitted.

Another senator says it would be wrong to say the judges are not fair; this is not vitriolic unbalanced discussion, the prosecution may not like it even when it is well deserved. Senator (Beatrice) Alachi said that indeed the judges have been fair to Kenya but the OTP (Office of the Prosecutor) has not been fair.

He quotes Alachi) In fact the OTP has made the process even more difficult for the country because most of the time the office uses the media even to issue statements and that is why the issue has become even more politicised. As Kenyans, we want to see a process where the OTP respects the jurisdiction of the country, and also respect the fact that we have a State and a government and there are institutions through which they can communicate.

“The sentiments I have read show the confidence of Parliament in the independence of the judges, but they represent the grave misgivings about the thoroughness of the prosecutor. I have the same misgivings.

“There is an independent office for the victims and witness protection unit in Kenya, many of the prosecution’s witnesses are already outside Kenya, and in fact (former ICC prosecutor Luis Moreno) Ocampo said that he did not have any witnesses in Kenya even prior to the confirmation of the charges.

“When the lie is broadcast, maybe we would get a torrent of new information that would assist us in showing that the witnesses are lying. The court has an imperative duty which is to decide whether or not protective measures are necessary, or whether or not the interest of justice demanded is going publicly and that is to be decided on a case by case basis.”