What the ICC should learn from witness mess in Uhuru Hague case

Two weeks ago, the ICC’s trial chamber noted the prosecution’s withdrawal of charges against President Kenyatta in December 2014 and terminated the proceedings against him.

This decision concluded Case Two— which began with the announcement of six Kenyans under investigation in December 2010— and left only Deputy President William Ruto and Joshua arap Sang to face charges of murder, forcible transfer and persecution as an indirect co-perpetrator and contributor to the commission of crimes, respectively.

President Kenyatta’s supporters lauded the collapse of Case Two as proof of his innocence, and as evidence of the ICC’s poor and biased investigations. In contrast, the ICC’s Office of the Prosecutor (OTP) insisted that charges were only dropped against Francis Muthaura in March 2013 and Kenyatta in December 2014 because it was impossible to fully investigate and prosecute the crimes. More specifically, the prosecutor cited the death, bribery and intimidation of key witnesses and the non-compliance of the Kenyan government in handing over requested records as insurmountable hurdles to successful prosecutions.

PRE-TRIAL BRIEF

I do not have access to the kind of information that would allow me to argue for or against the OTP’s claims. Instead, this piece is directed to the ICC and to those who work with it.
Since, if there is any basis to the OTP’s claims, then there are important lessons that the court needs to learn to ensure that future cases do not suffer the same fate.

In January, the OTP released a pre-trial brief dated August 26, 2013, which outlined the prosecution’s case regarding President Kenyatta’s alleged involvement in the retaliatory attacks that took place towards the end of January 2008 and steps taken to cover up the same.

In this document, the prosecutor claimed that Mungiki members who interacted with the accused during the post-election violence were killed or forcibly disappeared, and that attempts were made to bribe and intimidate witnesses to provide false and exonerating testimony.

When I read this document, two things struck me. First, allegations of intimidation and bribery of witnesses were all attributed to Kenyatta’s supporters and allies rather than to the President himself. Second, several of those named as perpetrators of intimidation and bribery were involved in earlier investigations of the post-election violence.

For example, the document talks of how three Mungiki insiders were approached by ‘Defence intermediaries’ who talked of plans to ‘buy witnesses’. This included a lawyer in Kenyatta’s defence team, but whose name I recognised from the Waki Commission, when he served as a victim’s lawyer and, as such, attended many of the commission’s public and in camera hearings.

WITNESS NUMBER 4

There is then also the infamous case of Witness Number 4 whose withdrawal of testimony prompted the collapse of Mutharua’s case in 2013 and, ultimately, Kenyatta’s in 2014.

According to the OTP, this witness was bribed and threatened by intermediaries and, once again, one of the names is recognisable from earlier investigations.

This time, it was a man who worked with the Kenya National Commission of Human Rights (KNCHR) in early 2008 and who developed the KNCHR’s victims’ database during the organisation’s investigation into the post-election violence.

The OTP clearly used evidence collected by the KNCHR and Waki Commission, while many witnesses were sourced through these initial investigations. Yet, these investigations were conducted at a time when it was impossible to know the kind of protection that would be required.

They also leaked, and several of the people involved have since crossed over to President Kenyatta’s side.

Thus, even if there is no basis to the OTP’s claims of witness intimidation and bribery, this pre-trial brief shows how witnesses could have been accessed. It, therefore, provides important lessons for the OTP’s use of earlier investigations over which the prosecutor has no control.

In short, the ICC needs to reconsider whether and how to use witnesses and evidence gathered by such processes when it is extremely difficult, if not impossible, to provide adequate witness protection to people whose identities are already known, who often maintain contact with co-nationals who they gave initial testimony to, and whose extended family and friends remain in the situation country.

Gabrielle Lynch, Associate Professor of Comparative Politics, University of Warwick ([email protected]; @GabrielleLynch6)