Uhuru questions prosecution witnesses in ICC case

Deputy Prime Minister Uhuru Kenyatta has challenged the credibility of prosecution witnesses in his case at the International Criminal Court.

He has written to the court to order the prosecution to disclose the identity of two witnesses and indicate whether it will rely on their evidence.

Mr Kenyatta is seeking the identities of witnesses 11 and 12 and wants to know if the prosecution will rely on their evidence and that of witness 4. The prosecution has been arguing that it cannot reveal the identities of the said witnesses for security reasons.

He wants the Trial Chamber to order the prosecution to disclose the evidence arising from all investigations and all other material including direct or indirect communication to date in respect to the three.

“The defence for Kenyatta seeks specific relief in respect of prosecution Witnesses 4, 11 and 12 at this stage in the proceedings. In particular, the defence requests the following: Confirmation from the prosecution that it intends to rely upon OTP-4, OTP-11 and OTP-12 at trial, and confirmation of the identities of OTP-11 and OTP-12,” the DPM said through his lawyers in an application dated July 11, 2012.

Mr Kenyatta says that on April 1, 2011, Witness 11 told a member of his defence support team that there had been “an attempt by ODM to induce the two witnesses to cross-over and testify” for the prosecution. He adds that prior to March 12, 2011, Witnesses 11 and 12 had provided exculpatory evidence to the Defence.

The DPM adds that the prosecution should, in the disclosure, include evidence which tends to show his innocence, or which may affect the credibility of these prosecution witnesses. He argues that witness 4’s statement to the prosecution contradicts that of Witness 11 in relation to the allegations that Mungiki met at State house on November 27, 2007.

“OTP-12 is led by the interviewer to conclude that a number of Mungiki members went to Nairobi State House on 27 November 2007. This allegation contradicts the Prosecution’s own case on the basis of the evidence of OTP-4 who claimed that such a meeting took place on 26 November 2007,” Mr Kenyatta argues.

Mr Kenyatta says that this allegation by the prosecution witness is contradicted by 11 of his witnesses who attended a meeting at State House on November 26, 2007.

Allegation is contradicted

He also argues that Witness 12 is led by the investigator to conclude that the DPM and other politicians attended a meeting on December 30, 2007 the purpose of which was to mobilise people on the ground. He says that this allegation is contradicted by “significant and credible defence evidence” available to the Trial Chamber, including the evidence of five of his witnesses.

Mr Kenyatta argues that it will be only fair if the defence has that information during the trials scheduled to kick off on April 11, 2013.

His lawyers are also seeking the court's permission to use “confidential identifying information, visual and/or non-textual documents for the sole purpose of defence investigations in respect of OTP-4, OTP-11 and OTP-12.”

Meanwhile, Kenya has lost, for the second time, its bid to acquire information from the ICC following its request to have evidence to conduct local proceedings into the post-election violence.

In denying Kenya the evidence, the Pre-Trial Chamber II led by Ekaterina Trendafilova last week unanimously agreed that the country could not be trusted with confidential prosecution materials.

The application had been filed on September 16, 2011 through former Attorney General Amos Wako who contracted Rodney Dixon and Geoffrey Nixon to act on behalf of the government.

The government in its request said it wanted to use the evidence to locally prosecute other perpetrators and also stop the ICC cases on basis that the state was prosecuting the four accused of crimes against humanity.

The government wanted all confidential un-redacted materials which have been provided by the prosecutor to the court as well as all un-redacted transcripts of proceedings during the confirmation hearing.