Uhuru's petition on witnesses dismissed

Deputy Prime Minister Uhuru Kenyatta at the ICC

By Alex Ndegwa

Mr Uhuru Kenyatta has lost a fresh bid to determine whether three witnesses whose testimony he discredited and believes secured confirmation of charges against him will testify during trial.

The International Criminal Court judges rejected the Deputy Prime Minister’s application to order the Prosecutor to confirm to his defence whether it would rely on witnesses coded 4, 11 and 12 at trial.

Uhuru suffered the latest setback as the countdown to the trial beckons in two weeks when the first submissions by the parties establishing undisputed facts of the case are due.

The three protected witnesses, whose identities ICC Prosecutor Fatou Bensouda disclosed to Uhuru on August 1, have been the subject of vicious sparring between the prosecution and Uhuru’s defence.

Uhuru has sought to brand witnesses 4, 11 and 12 as liars, claiming they initially attempted to extort money from him and only turned to the prosecution when he refused to bribe them.

However, the DPM who claims they tried to extort from him and went to ICC when he refused to yield, is free to table evidence, including visual, audio and written word to prove to the court that this actually true.

Trial Chamber V judges agreed with the prosecution that the request was an attempt to obtain information earlier than stipulated in the schedule for the trial due to start on April 11 next year.

Uhuru’s lawyer, Steven Kay, told judges during confirmation of charges hearing last September the prosecution anchored its case against Uhuru on what was claimed by the three protected witnesses. “However, two of them, numbers 11 and 12, were first interviewed by the defence team in 2011 and gave a fully exculpatory account to that now relied upon by the prosecution,” he said.

Kay then told Pre-Trial Chamber II judges their versions “utterly contradicts the account that they have tried to advance in this court”.

“Those protected witnesses, numbers 11 and 12, then attempted to extort money from my defence team and offered to pervert the course of justice, but they were thrown out of our offices,” he said.

Kay added: “In pursuit of money, which has been their sole motivation, they discovered the ICC prosecutor offered better packages than we did. So that is where they went to provide a lying and utterly false account.”

The third protected witness, Uhuru argues, has an account motivated apparently “by his desire for a life abroad and living in luxury.”

It is against this background that Uhuru’s lawyers in July requested specific relief in respect of prosecution witnesses 4, 11 and 12.

The lawyers petitioned the Chamber to order the Prosecutor to confirm to the defence whether it intends to rely on the three prosecution witnesses at trial.

But the prosecution in a response filed on August 2 urged the judges to dismiss the application.

The prosecution argued confirmation of whether it intends to call them would amount to a reconsideration of the Chamber’s decision on schedule of trial. “The Chamber agrees with the prosecution that an order to the prosecution to confirm whether it intends to rely on these three witnesses at trial would be inconsistent with the schedule decision,” states the court ruling issued on August 16.

The judges had in July issued a schedule leading up to trial in which they set a number of deadlines.

Among them was a January 9 deadline for the prosecution to file the list of witnesses to be relied on at trial.

Trial Chamber V judges Kuniko Ozaki, presiding judge, Christine Van den Wyngaert and Chile Eboe-Osuji ruled granting Uhuru’s request would amount to varying the schedule decision.

The judges noted nothing obstructed the defence from investigating the credibility of the three witnesses. “Notably, the ability of the defence to conduct a thorough investigation in respect of the credibility of the witnesses is not affected by whether the prosecution intends to rely on these witnesses at trial. The first request is therefore dismissed,” the judges ruled.

The dismissal added to previous losses by the accused, including in March when ICC judges rejected an appeal by Uhuru alongside three other accused to appeal their committal to trial.

Uhuru had challenged the reliance on anonymous witnesses and indirect evidence from unreliable sources.

The DPM had attacked evidence in relation to the allegation by one prosecution witness of a meeting at State House with members of proscribed Mungiki Sect.

Previously the ICC Appeals Division had rejected an application by the accused to suspend trial pending determination of their appeal on jurisdiction.

Recently, the judges also rejected the request for an interim order prohibiting the prosecution from contacting potential defence witnesses until the Chamber ruled on the protocol of doing so.

Also dismissed was an application for an order to the prosecution for disclosure of a log of contacts with potential defence witnesses. The judges, however, ruled that did not prejudice the application being resubmitted in future.

However in the latest ruling, the judges allowed the third request permitting the defence to use confidential identity information in their investigations with regard to the three witnesses.

Said the judges: “The defence should be allowed to disclose that information for the purpose of investigations in respect of the three witnesses under the restrictions laid out in the Draft Protocol.”

Another application to compel the prosecution to reveal the identities of witnesses 11 and 12 had been overtaken by events. The prosecution disclosed their identities on August 1.

The judges directed the parties to co-operate in the disclosure of evidence and only seek the Chamber’s intervention when they disagreed on an issue.

The decision on a trial schedule was to ensure the expeditious conduct of the trial and to facilitate preparation of the parties.

On September 3 the prosecution and defence teams are expected to make first joint filing on agreed facts.

The prosecution is also to file the provisional list of witnesses and evidence it intends to rely on at trial by October16.

Completion of all disclosure by the prosecution including incriminatory material in the form of witness statements and any other material is due by 9 January next year. 

Also to be filed by the same date is a pre-trial brief, which refers to a document by the prosecution explaining its case with reference to the evidence it intends to rely on at trial.

The last filing on March 12 next year is the disclosure to the defence of the identities of witnesses not under the ICC protection programme but whose security concerns the prosecution cited to secure delayed disclosure.