Saturday, September 8, 2012

WITNESS LIED TO ICC, SAYS UHURU



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DEPUTY Prime Minister Uhuru Kenyatta has written to the ICC judges informing them that a key prosecution witnesses against him has confirmed himself to be a liar. Uhuru, who has been contesting the credibility of two witnesses against him, told trial judges that the witness has admitted to lying about material events of a meeting.
 He said the evidence given by the witness had formed a major plank of the confirmation decision that committed him to full trial set to start in April 2013. “The Prosecution re-interviewed Witness 4. On 22 August 2012, the prosecution disclosed this further interview in a statement in which Witness 4 admitted lying in a previous OTP statement. This changed account substantially altered facts relied upon by the Prosecution at confirmation,” Uhuru said in a submission filed with co-accused Francis Muthaura. They have also complained that prosecutor Fatou Bensouda delayed in disclosing this development to them.
 The two are contesting the prosecution's request to be allowed to prepare their trial witnesses up to a day before the trial. In lengthy joint filings they said witnesses 11, 12, 4 and 9 are members of a proscribed criminal gang who are “knowingly coming to the ICC to lie”. If they are assisted, the two said, they will be being helped to deceive. During the confirmation of charges hearing last year, Uhuru claimed two of the witnesses had attempted to extort money from him. He claimed they became prosecution witnesses after he refused to pay them.
 Now Uhuru says if the prosecution is allowed to “prepare” or “assist” the witnesses 24 hours before their testimony, their spontaneity will be lost. He said prosecution wants to iron out weaknesses and evidential flaws revealed by him. “The prosecution intends nothing less than to school its witnesses and to explain to them why evidence may be relevant or irrelevant. Such discussion should not, the defence submit, be permitted as it may, even unwittingly, reveal to the witness an account that is preferred by the calling party - which may not completely or accurately reflect what the witness would say if such discussion had not been permitted,” he said.
 The two said it is evident from “an objective assessment” of witness statements that the prosecution has not properly engaged in a rigorous and impartial truth finding exercise envisaged by the drafters of the Rome Statute. They said they cannot understand why the prosecution is basing its case on evidence from witnesses whose credibility is damaged.
 Uhuru and Muthaura said the prosecution's application had no basis in law nor was any justification offered. They said the prosecution has had ample time since January this year to re-interview and prepare their witnesses. On the prosecution's claim that the witnesses could be bribed or threatened hence the need for contact up to the last day, the two dismissed such claims as unfounded.
 “It is also most unfair to Ambassador Muthaura and Mr. Kenyatta who are presumed innocent and who deny in absolute terms any conduct that amounts to bribery, inducement or improper pressure on any witness to decline to give evidence before the ICC. If such allegations are made, it must be right that the defence are allowed the material possibility to answer them, a right which the Prosecution has denied the defence,” they said.
 Victims' lawyer Morris Anyah has, however, agreed to prosecution's proposal saying security situation in Kenya has been such that personal contact of witnesses and prosecution must be limited. However, Anyah said the preparation deadline should be reduced to 36 hours before the appearance of the witness at trial. This would ensure the defence is not prejudiced. Their counterparts in the other Kenyan case have also opposed the move reminding the judges that similar requests had been turned down at severally at the same court.
 William Ruto and Joshua Sang said the prosecution claims on witness security as inhibiting prosecution interaction with the witnesses was moot because many of the witnesses have been relocated outside Kenya. “For those witnesses remaining in Kenya, the defence is confident that the prosecution can rely on its counsel, investigators, intermediaries, and NGO connections, in conjunction with the Victims and Witness Unit,” the two said.

FACT BOX
Yesterday, Muthaura and Uhuru agreed to the following; these facts will not need to be proved at the trial level. That State House in Nairobi is the official residence of the president. That on 26 November 2007, President Kibaki held a meeting with national youth leaders in State House.
That Muthaura, Stanley Murage, Hyslop Ipu, Cyrus Gituai, Mohammed Kuti and Yvonne Khamati were present at the 26 November 2007 State House Meeting. That in the 2007 elections, the Luo, Luhya and Kalenjin communities generally supported the ODM. That in January and February 2008 during the PEV, Muthaura chaired daily meetings of the National Security and Advisory Committee.
That as secretary to the cabinet, one of MUTHAURA’s roles was to communicate decisions of cabinet to the relevant ministries. That as PS for the Presidency, one of Muthaura's roles was to communicate the President’s decisions to the relevant government departments as directed by the President.
That more than 1,000 people died in Kenya due to the PEV and that the 2007 Kenya elections were polarized along ethno-political lines. That during the period covered by the charges, the Kenyan Army had a base with two barracks in Gilgil, which is about 40 kilometres away from Naivasha.

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