Tag Archives: Witness Tampering

Consequences of Our Choices

I’m back and refreshed after an election season in which we surprised everyone, including ourselves, by respecting the decisions of our institutions.

It was touch and go when activists like Dennis Itumbi were orchestrating campaigns against the Supreme Court alleging that it was compromised by the CJ’s supposed closeness with Raila Odinga. Itumbi, some may recall, was arrested late last year on the suspicion that he was witness tampering (hacking into email accounts of protected witnesses in the Kenyatta/Muthaura case). After his release, he made a complaint against the ICC prosecutor which the Trial ChamberĀ dismissed on the basis that the Prosecutor had no role in his arrest.

On to recent news from the ICC cases: the pre-trial chamber has approved an addition to the charges facing Kenyatta. Judge Trendafilova allowed the Prosecutor to re-insert an allegation that victims were shot dead Nakuru and Naivasha in the course of the attacks against civilians. The guns identified by the Prosecutor are AK47s and G-3 rifles- both types are common in Kenya and are standard issue amongst Police and Paramilitary formations. The Judge further stated that after confirmation of charges, the Prosecutor could only amend charges with the consent of the court. No consent is ordinarily required prior to confirmation. According to the court, the Prosecutor was required to provide evidence supporting her allegation- this she did through four witness statements. Judge Trendafilova, after analysing the statements and party submissions on the matter ruled that this was sufficient to permit the Prosecutor to amend the charges.

The ruling also carried a blunt warning to the Prosecutor that in carrying out investigations after Confirmation of charges, she must bear in mind that the Court will require an explanation from her as to why she was unable to produce the evidence prior to confirmation. Any such evidence will be analysed to ensure that it is necessary to establish the truth, or that it is justified in ‘certain circumstances’.

So why was the Prosecutor unable to produce this evidence earlier at the confirmation proceedings? The answer, according to Judge Trendafilova’s ruling, is troubling. The Judge was persuaded by the Prosecutor’s explanation that investigations were hampered by threats to witnesses, lack of cooperation, security concerns and difficulty in approaching insider witnesses. If this was the operating environment for the Prosecutor prior to these elections, it is likely to get worse now that Uhuruto are in charge of the nation’s executive organs. Despite the institutional independence ingrained in our constitution, old habits of knee-jerk loyalty to State House die hard. The Prosecutor is unlikely to get much more cooperation out of Kenya’s security and intelligence apparatus; though it would be a pleasant surprise if she did.

And with unrelenting pressure on her witnesses, it’s understandable why Fatou Bensouda calls these the hardest cases she is undertaking at the ICC.

Lapsing into bad habits

After referring to his ICC case a ‘personal challenge’ during the first Presidential debate, Uhuru Kenyatta is evidently not averse to publicly referring to it in his campaigning. According to this article, he rhetorically asked a crowd in Meru that “If Muthaura’s case is collapsing, is that not an indication even mine will go nowhere?”

 

This is presumably a reference to the application by the Muthaura defence to have the case referred back to the Pre-Trial Chamber on the basis that there was a ‘fraud’ against the proceedings and the PTC was misled into confirming charges against the former ambassador. This is based around facts that led to the withdrawal of witness OTP-4 from the Prosecutor’s list of witnesses.

 

While there is a lot of speculation about the cases, it is unfortunate that, as a Presidential Candidate, Kenyatta could not restrain himself from publicly pronouncing on matters still before a court.

 

Nonetheless, perhaps he and his running mate have cause to be particularly jubilant over recent good news: the dismissal of the Integrity Case against them, OTP-4’s supposed about-turn and the fact that Kenyatta was rated a top debate performer (at least in the first round).

 

But it’s a little early to analogise from the case of his fellow accused because (a) Muthaura is a defendant until charges are dismissed and (b) simply because there may be fundamental issues in Muthaura’s case does not mean Kenyatta’s case must go the same way. More so because the Prosecutor still seems to have Kenyatta in its sights for alleged witness tampering.

Ruto/Sang Status Conference

The court ordered a status conference in this case to be held on the afternoon of 14th February 2013. It asked participants for their observations on what should be covered during the conference.

The Sang defence replied indicating its concern about cuts to the legal aid budget (from which Sang’s legal expenses have been paid), payments for his travel and stay in the Netherlands and asking that he not be restricted to the Hague during his stay in the Netherlands (his VISA conditions previously required this). The defence team further worried about the removal of certain prosecution witnesses from the final list of witnesses as well as the calling of at least 14 witnesses as to Sang’s conduct during the 2005 referendum- which they feel unduly extends the scope of the case. Apart from other organisational matters, the defence also wanted the Trial Chamber to explain how it will alternate between hearings of the Kenya 1 and Kenya 2 cases.

The Ruto Defence had fewer issues to raise in the run-up to the status conference, only asking for a similar extension of the Visa restrictions and noting its concern as to the late disclosure of evidence by the Prosecutor.

The Prosecutor reiterated her concern about attempts to contact and influence her witnesses. She also asked the court to get a public declaration from Ruto and Sang that they will appear when called for trial.

The Registrar made her observations, noting a number of logistical matters but focusing on the question of whether the Kenya 1 and Kenya 2 trials will be held simultaneously or consecutively. She estimates the length of the trials to be 18-36 depending on the mode of hearings. The Registrar notes that the simultaneous hearings model, from previous experience required extra costs, extra judicial resources (in terms of time). She recommended having 1-3 more judges for the 2 cases.

The Chamber, after receiving these observations, issued an agenda for the status conference on the following terms:

  1. Practical modalities for accused’s attendance at trial
  2. Delayed prosecution disclosure and its impact on the trial
  3. Scheduling of the two Kenya cases.

During the actual status conference the Chamber raised the question of 3 witnesses for whom full disclosure has been delayed by the Prosecutor. The Prosecutor explained that they were awaiting news from the VPRS on protective measures before disclosure can be fulfilled. The defence complained that there would not be enough time to investigate and prepare simply on the basis of the redacted summaries that the Prosecutor has so far provided. The specific matter of redactions concerned defence as they felt that this protective censorship shielded parts of the Prosecutor’s case from them such that they could not prepare adequately.

The defence also wanted screening notes from earlier meetings between the OTP investigators and some of the witnesses. Finally, the defence complained that the scope of the Prosecution case (the number of meetings by perpetrators, the number of tribes affected, number of witnesses etc.) kept changing. The OTP, however, denied any suggestion that the case had fundamentally changed and argued that the main witnesses and evidence were already known to the defence. The Trial Chamber will rule on this matter after written submissions are received.

 

The Defence also emphasised their preference for an Arusha-based Trial.

 

The court then turned to the scheduling of the two Kenya cases; like in the Kenyatta/Muthaura case, the Trial Chamber explained that it had communicated to the Presidency of the ICC suggesting that the cases by heard by separate trial chambers rather than just one. The court also indicated that resource limitations might mean that the two cases will share one courtroom; hearings for one case in the morning and the other case in the afternoon. Each hearing would last 4 hours.

 

The matter is in the hands of the Presidency of the ICC.

 

The OPCV made submissions on behalf of the Common Legal Representative of the Victims. He urged a longer period before the beginning of the trial so as not to coincide with the Kenyan elections (and presumably any run-off in the Presidential Elections).

Recent Court Documents in the 2 Kenya ICC Cases 30 December 2012

The Prosecutor has renewed her request for redactions of investigators’ names from documents to be disclosed to the defence. This follows the Trial Chamber’s dismissal of her previous request. The fact that the defence teams have been alleging (in confirmation proceedings) that ICC investigators failed to do their job properly may make the issue of identifying investigators a key struggle during the trial. No surprise then that the defence wants the names or pseudonyms of the investigators (see here and here).

The Kenyatta/Muthaura defence has asked the Trial Chamber not to allow delayed disclosure by the Prosecutory of 4 witness identities. The prosecutor wanted to disclose identities 30 days before trial (rather than on the 9 January 2013 deadline initially set by the court). The defence argues that delayed disclosure impacts their ability to assess witness credibility. The defence also argues that delayed disclosure impacts on its ability to adequately investigate the whereabouts of individuals and their movements 5 years ago (before, during and after PEV). The defence further argues against permitting the Prosecutor to disclose the identity of 1 witness after the trial begins; they argue that this is contrary to the intent of the Rome Statute and may impact the ability to effectively cross-examine the witness who has been disclosed during the trial (for example other witnesses who’ve already testified may be unavailable if recalled for re-cross-examination on the basis of the new witness’ evidence).

The Prosecutor added an additional 7 witnesses to her applications for delayed disclosure of identity. There are now a total of 12 Witnesses (out of 35 on the Prosecutor’s provisional list of witnesses) for whom the Prosecutor seeks delayed disclosure. This application for the additional 7 is due to concerns for the security of the witnesses. Furthermore, the Prosecutor identified a number of these witnesses recently and so argues that they should be given more time prior to disclosure. However, in one troubling allegation, the Prosecutor suggests that one witness (pseudonym: Witness 334) was offered money to refuse to testify for the Prosecution. Not only that, but the Prosecutor suggests that attempts are being made to identify witnesses within the ICC’s Protection Programme. Other witnesses who were allegedly offered bribes were Mungiki insiders. Finally, the Prosecutor argues that there have been leaks of confidential information to supporters of the Uhuru Kenyatta and Francis Muthaura.

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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