ICC warns false witnesses will be jailed as EU speaks

By Evelyn Kwamboka and Lucianne Limo

Witnesses found to have lied to the International Criminal Court about alleged role of four Kenyans committed to full at The Hague may be jailed for five years.

The warning came as the European Union cautioned Kenyans to be wary of individuals calling for postponement of the trial of the four accused until after the General Election in which two of them will fight to succeed President Kibaki.

ICC spokesman Fadi El-Abdala sounded the warning on Kenyan soil, where he is visiting to sensitise select groups such as the media, on the next phase of the trials. His statement stoked memories of the common defence put up by the initial six Chief Prosecutor Luis Moreno-Ocampo wanted charged, that the ICC witnesses were fake and their testimonies fraudulent.

European Union Special Representative for the Horn of Africa Alexander Rondos (left), and Head of Delegation Lodewijk Briet address the Press in Nairobi, on Tuesday. [Photo: Govedi Asutsa/Standard]

El-Abdala also termed as an "exercise in futility" a move to collect two million signatures by supporters of Deputy Prime Minister Uhuru Kenyatta under the aegis of Gema Association, to petition ICC to postpone the cases against the four accused until after elections.

El-Abdala said the leaders pushing for the postponement were not parties to the case and the court cannot take any political considerations in making its decision.

"It will not have an impact on the cases. It is for parties in the case to give judges valuable reasons to have their matters suspended," he said.

The ICC spokesman said the Rome Statute does not spare those who guide witnesses to give false statements, interfere with the collection of evidence or retaliate against a witness. "It is possible for a witness to change facts in his or her statement, but such a modification can only take place before the ICC judges," he explained.

In an apparent reference to the Gema meeting last Friday and attended by, among others, Deputy Prime Minister Uhuru Kenyatta, who is one of the four accused and a presidential aspirant, EU told Kenyans not to entertain those who do not want to see the judicial process at the ICC concluded.

"The process leading to the suspects being arraigned at ICC arose from the chaos after 2007 elections," said Nick Westcott, Director European External Action Service on behalf of EU mission in Nairobi.

The Gema meeting dubbed Limuru II resolved to collect over two million signatures to petition the ICC to postpone the imminent trials to allow free and fair elections.

ICC’s Appeals Chamber is due to rule on a challenge on jurisdiction, filed by the four defendants, which is their last hope to stop trial.

Energy minister Kiraitu Murungi initiated the debate on postponing the case, terming it a common practice within any court proceedings.

Westcott called on the Independent Electoral and Boundaries Commission to put in place measures that would ensure free and fair elections to avert chaos.

He said when elections are deemed to be free, fair and transparent, the more people will accept the results. "Aspirants should also ensure they participate in a process that is free and fair and those who want to use violence to gain power should be brought to book," Westcott added.

He expressed concerns that the tone of campaigns was "getting extreme" with some individuals using hate speech against others.

"If I were I Kenyan, I would be concerned at the tone of debates. It is the responsibility of political actors to be cautious and not exacerbate the situation," he added.

EU head of delegation Lodewijk Briet and Westcott called on the Government to agree on an elections date sooner rather than later.

Article 70(3) of the Rome Statute provides that if one is found guilty of lying to the court, the judges may impose a term of imprisonment not exceeding five years, or a fine, or both.

The ICC spokesman also said not all the 570 victims would participate in the coming trial of Eldoret North MP William Ruto, Kass FM broadcaster Joshua arap Sang, former Head of Public Service Francis Muthaura, and Uhuru

"Some of the victims will not participate because the charges confirmed by Pre-Trial Chamber II cover a period of time and particular places. The crimes did not take place in their areas," explained El-Abdalla.

More victims are expected to apply for participation in the trial set to kick off immediately ICC president appoints judges to handle it, or reparation process starts.

In the confirmation of charges stage, the court’s victims unit received more than 4,000 applications for participation and reparation.

Most of the applications were incomplete. They lack information such as identities of the victims, and were not linked to a particular case.

In the case against Ruto and Sang, the court approved 327 applications, and 233 in the one against Uhuru and Muthaura.

Abdalla pointed out that the trial chamber would decide on whether to appoint new lawyers to represent the victims in the case or continue with lawyers Sureta Chana and Morris Anyah.

Chana and Anyah were appointed by Pre-Trial Chamber II judges to represent victims only in the confirmation of charges stage.

At the confirmation of charges hearing in September, Ruto claimed six prosecution witnesses were coached to give incriminating evidence against him.

Ruto claimed the Kenya National Commission on Human Rights offered witnesses lavish lifestyles in exchange for false testimony against him. He claimed the prosecution was complicit because it relied on the discredited evidence to convince the ICC to issue summonses.

El-Abdalla explained the trial has delayed due to reasons such as the court appointing new judges and a president, adding that the Bench to handle the case against four suspects will be announced soon.

Once the Bench is constituted, he said, the prosecution would be expected to disclose to the defence team its evidence, and a list of witnesses it wishes to rely on.

The prosecution is to give the court a calendar showing what dates the evidence would be disclosed to the defence team.