Forcing ICC witnesses to testify bad for Bensouda and Ruto, experts say

The decision by the International Criminal Court (ICC) to force eight witnesses who had recanted their statements to testify is a double-edged sword for Prosecutor Fatou Bensouda and the accused, legal experts say.

The directive could also be used to test the level of co-operation from Kenya about which the prosecution has been complaining, according to lawyer Donald Rabala.

“Remember the court and the international community are watching the government’s co-operation with the ICC, and the prosecutor can use that to argue her case,” he said.

Those caught in the mix are witnesses 15, 16, 336, 397, 516, 524, 495 and 323 who had withdrawn from the case involving Mr Ruto and journalist Joshua arap Sang. The witnesses may become entangled in lengthy legal battles with the court if they are found to have lied under oath. (READ: ICC: Ruto case witnesses must testify)

“The ruling works towards the course of justice. When witnesses give statements it is important they follow through. There are consequences if witnesses suddenly refuse to cooperate, in which case they have to give the reasons for that. If a witness lies under oath, it is perjury, and they can get in trouble if they are found guilty,” said Mr Njonjo Mue, the programme advisor for Kenyans for Peace with Truth and Justice (KPTJ).

But according to lawyer Evans Monari who represented former Commissioner of Police Hussein Ali before the charges were dropped by the ICC pre-trial chamber, Trial Chamber V(a)’s ruling compelling the eight witnesses to testify will make them potentially hostile to the prosecutor.

“They may not give useful evidence if they are forced to testify. In fact this ruling will be a minus for the prosecutor because the witnesses can say certain things that exonerate the accused persons and potentially reveal some dirt in the Office of the Prosecutor previously unknown to the defence,” said Mr Monari.

He added that if the witnesses are forced to testify, the potential for self-incrimination by accepting that they lied under oath will be the least of their concerns.

“They may not care much about incriminating themselves given that they had informed the prosecutor of their decisions. It may work against Ms Bensouda and her investigators,” he explained.

A defence lawyer who requested anonymity also said compelling the witnesses “doesn’t mean a blessing for the prosecutor” in as much as it will not augur well for the witnesses whom he described as “untruthful”. He further wondered whether the ICC was now willing to disclose the identity of the witnesses to the government after previously refusing to do so.

“All of a sudden, the ICC is saying the government should facilitate this directive, yet the witnesses had requested that their statements should not be revealed to Kenyan authorities,” the lawyer said.

MAY WORK AGAINST RUTO, SANG

However, according to Mr Rabala, the kind of evidence being sought from the witnesses is meant to reinforce the prosecution’s case, and thus if they testify, it may work against Mr Ruto and Mr Sang.

“If I were the prosecutor, I would produce the earlier statements and tell the judges, ‘look, I cannot tell what happened between the time they gave these statements and now’. Then the judges can decide to use the earlier written statements which will work against the two,” said Mr Rabala.

This, Mr Rabala said, could also drive Ms Bensouda to go after the accused and their agents if it is established there was witness tampering, an offence that carries a maximum five-year jail term or a fine.

On Thursday, Trial Chamber V(a) granted, by a majority, Ms Bensouda’s request that the eight witnesses be compelled to testify either in person or via video link. Judges Chile Eboe-Osuji and Robert Fremr directed the Registry “to prepare and transmit, in consultation with the prosecutor, the necessary subpoenas to the concerned witnesses (with or without the assistance of the Government of Kenya) as well as the necessary cooperation request to the relevant authorities of the Republic of Kenya”. Judge Herrera Carbuccia gave a dissenting opinion.

But the directive faces serious hurdles given that the Kenya government, through Attorney-General Githu Muigai had in the past indicated that such requests would be subject to Kenyan law.

“Requiring the government of Kenya to exercise judicial authority in compelling witnesses would be an attempt at imposing obligations on a State Party that exceed the treaty obligations,” the AG said in a February 10 filing opposing Ms Bensouda’s application for the eight witnesses to be subpoenaed.

INTERNATIONAL LAWS

According to Mr Monari, compellability had been found to be a matter under the Kenyan laws, but not under international laws as was evident when the ICC attempted to obtain evidence from police chiefs who served in the regions that were most affected by the violence.

“The Rome Statute does not allow compellability of witnesses,” he said.

But in their majority ruling, Judges Osuji and Fremr had said that the ICC “has the power to compel the testimony of witnesses”.

The eight witnesses were supposed to testify against Mr Ruto and former journalist Joshua Sang but withdrew at the last minute.

While seven of the witnesses are said to have cited circumstances that could not allow them to continue cooperating with the prosecutor, witness 323 allegedly became uncooperative because the prosecution had failed to honour its side of the bargain. Witness 15 had cited his deteriorating health, an argument the defence brought before the chamber but in vain.

Ms Bensouda has repeatedly complained that the prosecution witnesses have faced unprecedented harassment, forcing some to pull out.

Mr Ruto’s lead counsel, Karim Khan has denied there was evidence of witness tampering.

“Well, I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘this is unprecedented witness intimidation’ and ‘unprecedented’ this and that,” said Mr Khan in an interview with The Hague Trials Kenya portal on April 4.

The ICC in October 2013 last year issued a warrant of arrest for former journalist Walter Barasa who is alleged to have attempted to bribe some witnesses in the Ruto case not to turn up at The Hague to testify.

“This is a legal process and we are not saying either Kenyatta or Ruto are guilty. All we are saying is that due process should be followed. This (ruling) puts the State in its rightful place. The focus is shifting to cooperation and the chamber is subtly saying cooperation goes beyond the accused persons appearing in court,” said Mr Mue.

Meanwhile, Mr Sang’s lawyer Kimutai Bosek told Sunday Nation that the defence had yet to decide on the next course of action.

“We are going to meet and strategise. We have an option to appeal,” said Mr Bosek.

Mr Monari also said he had no doubt the defence will appeal.

“If the appeal is rejected, remember the ICC has no police of its own in Kenya and in any case, Kenyans have no lust for the ICC any more,” said Mr Monari.