SOME of the witnesses to be summoned by the ICC to testify against the Ocampo Six are still in Kenya.ICC Chief Prosecutor Luis Moreno Ocampo yesterday said he intends to call ten live witnesses in the two cases, and rely on 20,400 pages of evidence and 7,800 witness statements.
Ocampo wants to present two cases of crimes against humanity: one against Finance minister Uhuru Kenyatta, Civil Service boss Francis Muthaura and former Police Commissioner Gen Hussein Ali; and one against Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and broadcaster Joshua arap Sang.
Ocampo told ICC Presiding Judge Ekaterina Trendafilova during yesterday's status conference at the Hague that he has 9,397 pages of evidence — contained in 542 documents — against Uhuru, Muthaura and Ali. He said his office has already collected 11,000 pages of evidence — contained in 606 documents — against Ruto, Kosgey and Sang.
In submissions made during the conference by his deputies, Ocampo added that he intends to rely on a further 3,100 witness statements as he seeks to have the court confirm charges against Uhuru, Muthaura and Ali and 4,700 witness statements against Ruto, Kosgey and Sang.
Ocampo applied to have virtually all pages of his evidence subjected to redactions or partial editing before he can release them to the defence lawyers to protect sensitive information.
He again expressed concern about the continued stay in office of Uhuru, Muthaura and Ali saying it could complicate the protection of witnesses, especially those still in Kenya. He said he will only disclose the evidence after the ICC Pre-Trial Chamber rules on the issue of witness protection.
Ocampo said he is uncomfortable with releasing evidence to the defence team until the case lodged by the Kenyan government challenging the admissibility of the cases at the ICC is concluded.“As far as the prosecution is concerned, protection of witnesses is cardinal and the prosecution has taken great care in consultation with Victims and Witnesses Protection Unit to protect all persons with whom it has come into contact through the course of investigations. This has also included minimising its contact with those remaining in the country,” said deputy prosecutor Fatou Bensouda.“However, it can only be on record that there is limited capacity to protect individuals in the country particularly where the suspects remain in positions of power in an environment where witnesses could run the risk of disappearing or otherwise becoming incorporated before testifying,” added Bensouda.“For this reason, the prosecution's position is that disclosure of documents containing sensitive information should take place only after protective measures are in place and a final decision is made on admissibility,” she said.
The prosecution's statement that the continued stay in office of Uhuru, Muthaura and Ali may have an impact on the case stung their lawyers.
The lawyers also questioned why Ocampo claims he has witnesses in Kenya yet he had earlier publicly stated that he had moved all witnesses to safety in foreign countries.
Muthaura's lawyer Karim Ahmad Khan described Ocampo's assertions as “grave” and irrelevant to the matter before the court. He drew the attention of the court to an April 2010 interview Ocampo gave to TV station Al Jazeera after investigations were authorised. Ocampo was quoted saying his office would not rely on the Kenyan authorities to protect ICC witnesses.
Last December when he released the names of the six suspects, Ocampo said he had moved his witnesses to other countries.“For the prosecutor to refer to public duties that my client holds, the public service he has provided over decades to the Republic of Kenya and to somehow seek to make innuendos that it will somehow place witnesses in jeopardy is to malign not only an individual who is innocent but to put a cloud of innuendo over these proceedings,” said Muthaura’s lawyer.
Uhuru’s lawyer Steven Kay said Ocampo's claim lacked foundation arguing the prosecutor’s office was mainly relying on unreliable media reports.“I ask the court to be mindful of media manipulation,” said Kay.
The status conference for Ruto, Kosgey and Sang was conducted in the morning while that of Uhuru, Muthaura and Ali was conducted in the afternoon.
Both sessions were presided over by judge Ekaterina Trendafilova who said the Pre-Trial Chamber will soon rule on the issues raised by the prosecutor and the defence lawyers including how to proceed with the disclosure phase and redaction of Ocampo’s evidence.
The hearing for confirmation of charges against Ruto, Kosgey and Sang will be on September 1 and on September 25 for Uhuru, Ali and Muthaura.
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