Witnesses: The ICC case hot potato that won’t cool down

Seven years since the post-election violence, few subjects have remained as thorny as the question of the witnesses who testified at the Waki and Kriegler commissions and in the ongoing cases at the International Criminal Court.

Some, like Meshack Yebei, were killed while others disappeared, never to be heard from again.

The subject has burst to prominence afresh following Gatundu South MP Moses Kuria’s claims of having played a role in “coaching” witnesses.

The new political drama is unfolding against the backdrop of a legal fight by three Kenyans — Walter Barasa, Paul Gicheru and Philip Kipkoech Bett — against arrest warrants for alleged witness tampering.

Lawyer Evans Monari, who served as a defence counsel for former Commissioner of Police Hussein Ali in The Hague, says the subject of witnesses will not go away because the testimony of people who actually saw and can tell what happened is often the clincher in cases such as those at the ICC. 

“Yes, we have evidence that houses were torched, people were killed and other heinous crimes were committed during the violence. But someone has to prove that they know who did it,” he said.

FUNDAMENTAL ERRORS
Such is the significance of witnesses that the subject has come up again after the ICC Trial Chamber, by majority, admitted into evidence statements that some five witnesses had disowned.

Deputy President William Ruto and Mr Joshua Sang, who are on trial in the court, have since appealed the decision, the former claiming that “fundamental errors” were made in the decision, which materially affected it.

The governments of Kenya, Namibia and Uganda as well as the African Union Commission have sought a friend-of-the-court status over the same matter in the appeal.

Since the admission of the prior recorded statements, Jubilee politicians have stepped up criticism of the ICC, repeating claims that the witnesses that Chief Prosecutor Fatou Bensouda relied on were coached.

Mr Kuria claimed, at a political rally in Kapsokwony, Bungoma County, that he took part in a meeting with Narc Kenya leader Martha Karua that came up with fake allegations and witnesses to influence investigations and the subsequent trial of Mr Ruto.

“The witnesses presented to (Judge Johann) Kriegler to show that PNU won were referred to me by Karua. She told me to secure accommodation for them,” said Mr Kuria. 

LEGAL REDRESS
Ms Karua has denied the allegations and sought legal redress, claiming damages from Mr Kuria for alleged defamation. 

But the politicians are not backing down on their criticism of the ICC, in particular over the subject of witnesses and treatment of evidence.

“All along we have been quiet until the testimony of people who had disowned the lies they had sold to the ICC was admitted into evidence.

“Some of the people whose statements were admitted had even refused to come to court and some who came to court could not even recognise William (Ruto) and Sang. It is also the first time ICC is forcing people to testify,” said Kericho Senator Charles Keter. 

According to Mr Keter, the “prayer” rallies by the Jubilee MPs across the country were driven by a perception that the ICC appears intent on convicting Mr Ruto and Mr Sang.

“When the rules of the game are changed in the middle of the game, it suggests the referee has a pre-determined outcome to these cases. But also look at the people currently before the court. The post-election violence touched every corner of this country but only two people from the same community are being tried. It is obvious to us that the (Kalenjin) community is being charged. We need to tell the people the truth. We cannot keep quiet any more,” he said. 

Eldoret-based rights activist Ken Wafula believes that the question of witnesses has remained a big issue because, like the case itself, it has been politicised.

“We are going to continue hearing about witnesses, not through the court but at political rallies,” he said. 

PROSECUTION'S THEORY
The prosecution’s theory has been that there was a network that was led by Mr Ruto and other commanders that planned and executed the violence.

On the other hand, Mr Sang is charged with having contributed to the commission of the crimes when he hosted the Len Nee Emet (What the Nation is Saying) programme at Kass FM, a vernacular radio station. 

“The prosecutor alleges there was a network. She must get the evidence from witnesses to back it up. I am not sure to what extent that mandate has been discharged,” said Mr Monari. 

Ms Bensouda presented 29 witnesses against Mr Ruto and Mr Sang before she formally closed the presentation of evidence in the case on September 10. 

Out of the 29, some were declared hostile and it is their prior statements that were recently admitted “for truth of their contents”, spurring the politicians into action. 

Some witnesses are recanting their testimonies, Mr Monari argues, because the prosecution obtained the evidence through third parties, mainly non-governmental organisations, which promised them so much. 

“They were told they would be relocated. They were told they would live a better life afterwards. The NGOs even lied to them that they would never be seen in court. But this did not happen. The ones who were relocated were kept in dingy hostels,” claimed Mr Monari. 

BENSOUDA'S VERSION
Mr Wafula rejected the allegations. “There is no problem with witnesses. The ones who have testified against Mr Ruto and Mr Sang came out voluntarily and there was no form of coercion as some may want the public to believe.”  

Further, Mr Monari believes the political rallies amount to nothing. “This is a matter for the legal team to dismantle and I believe they are on top of things. These people who are fighting for headlines in newspapers are not having their statements recorded,” he said. 

Since the Waki and Kriegler commissions completed their work, the debate over witnesses has refused to die down. 

If anything, with the admission of the prior recorded statements, it may just have started.

The concern over witnesses has also been about promises of relocation to safe places, some witnesses recanting their statements, and forced disappearances.

Ms Bensouda has a different version.

She said in a statement that she was aware of media reports regarding allegations of witness interference in the on-going case against Mr Ruto and Mr Sang, in particular the claims by Mr Kuria and other Jubilee politicians that witnesses were paid a measly sum of Sh2,000 to frame the Deputy President.

WITNESS TAMPERING
However, she said she would not be drawn “into public speculation on investigations into alleged crimes within the court’s jurisdiction”.

“The Office of the Prosecutor carries out independent investigations into allegations of crimes falling within the court’s jurisdiction. As a matter of policy, the Office of the Prosecutor will neither confirm nor deny media reports about the office’s investigative activities,” she said.

Despite avoiding being drawn into the issue, she cautioned against tampering with witnesses. “The Office of the Prosecutor takes any attempt to obstruct the course of justice very seriously, and will not hesitate to take appropriate action within its mandate and means.”

Despite the warning, Mr Monari said, the public debate about the integrity or lack of it of the witnesses would not end soon.

“The issue of witnesses does not look like it will ever be resolved. Even if it is resolved, I am not sure it will be done to the satisfaction of all the parties involved and will remain alive,” he said.