Sunday, October 9, 2011

Ocampo’s final strategy



By DAVID OCHAMI and CYRUS OMBATI
ICC Prosecutor Luis Moreno-Ocampo will tell Pre-Trial Chamber II judges in his final written submission that the strategy by defence lawyers in the second Kenyan case of isolating three out of twelve of his witnesses is irrelevant.
At the confirmation of charges hearings last week, the defence lawyers singled out Prosecution Witnesses 4, 11 and 12 as inconsistent and unreliable and asked that their testimonies not be used by the Pre-Trial Chamber II judges to put their clients on trial.
International Criminal Court Chief Prosecutor Luis Moreno-Ocampo. He has attempted to discount the strategy used by defence teams for three Kenyan suspects of the 2007/08 post-election violence. [PHOTO: FILE/STANDARD]
But Moreno-Ocampo, whose tactics and performance at the hearings was heavily criticised, says the defence misrepresented his evidence by evaluating it in a selective and haphazard manner, and ignoring pertinent testimony.
One of the witnesses, Prosecution Witness 9, is a former Mungiki member who "attended rallies organised by MPs from Central Province" to recruit, mobilise and pay pro-PNU youth to engage in the violence that rocked Nakuru and Naivasha, says the prosecution.
In the prosecution’s closing oral submission delivered last week, Prosecutor Ms Adesola Adeboyejo says: "The essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable. It is not necessary that the corroboration extend to every part of the evidence. The corroboration need not be conclusive."
Another former Mungiki member, Witness 10, was allegedly present at a State House meeting and was transported with others in a military truck to Naivasha to participate in the atrocities.
The Standard has obtained the full transcript of the prosecution’s closing submissions by Prosecutor Adeboyejo, which will be included the prosecution’s final written submission on its case against Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service Francis Kirimi Muthaura and Maj-Gen (Rtd) Hussein Ali, Postmaster former Police Commissioner.
Ms Adeboyejo says the defence by alleging, "that the statements of anonymous witnesses or summary evidence is somehow unreliable" and of limited value, overlooks the fact that Articles 61(5), 68(5) and Rule 81(4) of the Rome Statute "explicitly permit the use of summary evidence" by the prosecution within the limited scope of the confirmation hearings.
Lawyers for Uhuru and Muthaura criticised the prosecution for failing to conduct proper investigations or providing live witnesses at the confirmation of charges hearings at The Hague, and said ICC Prosecutor Moreno-Ocampo relied largely on innuendo, gossip and rumours to charge their clients.
But Adeboyejo defends the decision to hide the identities of some witnesses and some of the evidence saying because the Office of the Prosecutor "continues to receive reports of threats, intimidation and attempts to bribe" their identities had to be redacted (hidden).
She claims Witness 4 made a statement in which he explained the inconsistencies in his testimony. He said he wished to hide his identity as a Mungiki: "I gave my statement [...] voluntarily. I did it because my life was in danger and because of the threats and phone calls that I was receiving. I wanted to record a statement about these issues."
Weighing the evidence
According to the prosecution, the defence expects the Pre-Trial Chamber II judges to exceed their mandate by judging the credibility of the witnesses and weighing the evidence, yet this should be done at the trial stage.
"Your Honours, the strategy of the Defence teams has been simple. They have tried to label Prosecution Witness 4 a liar, Prosecution Witnesses 11 and 12 extortionists, and the rest of the Prosecution’s witness statements and evidence irrelevant rumours," says Adeboyejo.
She says the fact that even the Defence has admitted that the witnesses were Mungiki insiders means their testimony cannot be discounted and should be weighed alongside supporting testimony provided by other witnesses.
These include witness 2, a Naivasha resident who claims to have watched first hand crowds of Kikuyu youth attacking perceived Orange Democratic Movement (ODM) supporters "following the withdrawal of prison guards in the town.
Witness 3 is a former commissioner in the Waki-led Commission Investigating Post Election Violence (CIPEV). Witness 5 offers insights into the structure of the Kenya Police, Administration Police and security committees, while Witness 6 testified on extra-judicial killings of Mungiki members by the police.
A specialist on sexual and gender based violence in Kenya "with direct knowledge of Mr Ali’s unwillingness to investigate sexual crimes" during the violence is Witness 7.
Witness 8, whose identity was revealed to the Defence, served on the National Task Force on Police Reform in 2009 and his testimony was relied on by the Prosecution to try and prove Ali allegedly by-passed the traditional hierarchy in the force using "a more militaristic and centralised approach to decision-making".
During the hearings attempts to bribe witnesses also continued, according to the prosecution, which also says, that phone records attempting to exonerate Head of Public Service Francis Muthaura from international crimes could be contrived.
"The prosecution continues to receive reports of threats, intimidation and attempts to bribe them..." according to the prosecution which also declares that a report by Gary Summers, an investigator hired by Uhuru’s lawyers to investigate the prosecution’s case is "manifestly unreliable" and concludes that the Gatundu MP and Finance Minister’s alibi on key dates during the 2007/2008 post election crisis could be false.
The Government refused to declare details of key National Security Advisory Committee NSAC meetings held at the height of the 2007/2008 post-election violence.
Regarding Uhuru’s alibi on November 26, the prosecution submitted that although the minister showed an undated video of him entering the Kenyatta International Conference Centre (KICC), it is now known how long he stayed there, while he is conspicuously missing from other videos showing people leaving the venue for the Intercontinental Hotel in Nairobi.
One-sided
According to the prosecution, Uhuru’s investigator, Gary Summers’ research was one-sided for not investigating claims of witness tampering, while phone records provided by Muthaura to demonstrate his telephone traffic during the violence "are inconclusive", unbelievable and unverified.
"... it is highly unlikely that an individual filling the three hats of Mr Muthaura during the chaotic period of the post election violence made only a handful of calls on a daily basis-and sometimes did not make any calls at all."
The prosecution uses defence witnesses to its advantage, saying former Naivasha DC Mr Katee Mwanza’s who testified on behalf of Muthaura supported evidence that it was largely the Luo, Kalenjin and Luhyas who were targeted in the Naivasha and Nakuru killings.
"In their presentation of evidence, Mr. Muthaura’s Defence even acknowledged the presence of the Mungiki in Nakuru. According to counsel, ‘Nakuru was already a Mungiki stronghold anyway’", says Prosecutor Adeboyejo.
Another of the defence witnesses, Mr Peter Otieno for Ali said there were only about 30 police officers in Naivasha during the violence.
The prosecution says Ali’s second witness, Mr Mohamed Amin," also admitted that the Mungiki ‘engage themselves in all sorts of violent acts, robberies, rape, murders and extortion, and they are ready for hire’."
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)