Witnesses’ safety ICC prosecutor’s biggest worry as trials loom

By Felix Olick

Security concerns against key witnesses in the two Kenyan cases at the International Criminal Court (ICC) remains the biggest hurdle for the prosecution as the deadlines set by the Trial Chamber looms.

ICC Prosecutor Fatou Bensouda is agonising over the security of witnesses she has lined up including Mungiki insiders following tight disclosure deadlines set by the three-judge Bench.

In their decision on the schedule leading up to trial, the judges set a calendar of events that both the prosecution and the defence must abide by ahead of the trials that kick off on April 10 and 11.

Deputy Prime Uhuru Kenyatta and Eldoret North MP William Ruto are facing crimes against humanity charges at The Hague-based   court.

The two are also in the race to State House in the vote scheduled for March 4, next year.

Their co-accused are former Head of Civil Service Francis Muthaura and Radio journalist Joshua arap Sang.

According to the schedule, the prosecution is supposed to file list of witnesses and list of evidence to be relied on at trial by January 9.

Incriminatory material

The bench led by Presiding Judge Kuniko Ozaki also set the same date for the disclosure of all incriminatory material in the form of witness statements and any other material to be relied on at trial.

Also to be filed on the same day is a pre-trial brief, a document explaining with case reference the evidence the prosecution intends to rely on at trial and must contain for each count a summary of the relevant evidence of each witness.

But already Bensouda is seeking authorisation from the bench to delay disclosure of identities of 15 key witnesses beyond the January 9, citing security concerns.

Out of the 15, six are expected to testify in the case against Uhuru and Muthaura while the rest apply to the case against Ruto and Sang.

Bensouda, who made an extensive tour of the country last month, had raised the red flag that some key witnesses have been intimidated, compromised, or threatened with death.

She wants to be allowed to conceal the identities of the witnesses until 30 days before the trial date or 30 days before the date they are expected to testify.

The witnesses against Uhuru and Muthaura whose identities Bensouda want concealed are former members of the outlawed Mungiki sect, whom the prosecution believe have insiders accounts of how pro-ODM supporters where brutally murdered in the Rift Valley.

However, Bensouda says several top officials of the outlawed sect were murdered after the post-election violence, a big security concern should their identities be disclosed.

She revealed the witnesses believe the killings and forced disappearances was part of a post-election violence “clean-up” conducted by State agents to conceal the involvement of the accused and other senior officials.

‘Insiders’ evidence

“Several senior Mungiki members disappeared or were murdered by suspected members of the Kenyan security apparatus in the immediate aftermath of the PEV. These individuals had direct knowledge of the accused contributions to the crimes charged,” Bensouda said in her application.

She maintained that the nature of the ‘insiders’ evidence creates a powerful incentive to the suspects to interfere with them so that they do not testify.

The ICC Chief Prosecutor said one of the witnesses provides critical evidence regarding the strategic meetings in which the Rift Valley attacks were organised.

She pleaded with the judges to grant her request, saying that there is limited pool of Mungiki members who are still alive and willing to testify.

“The insiders’ evidence is irreplaceable. Were they to be tampered with, it would substantially affect the prosecution’s case. This creates a powerful incentive to interfere with the insiders,” argued the prosecutor.

Bensouda believes that since the accused are not in custody, their contacts with supporters or potential witnesses cannot be limited and monitored.

She argues that The Hague-based court has no capacity to control, or even to monitor, the conduct of persons in a non-custodial situation thousands of miles from the seat of the court.

“In addition, these particular accused have influential positions within and/or close ties to the Government of Kenya, which compound both the risks they pose and the difficulties in mitigating them,” Bensouda noted.

She also argues that the nine witnesses in the Ruto-Sang case have specific security concerns on their safety, physical and psychological wellbeing, dignity and privacy.

The defence teams in the two Kenyan cases have previously challenged the credibility of the ICC witnesses, insisting that their identities be disclosed.

Uhuru, for instance, branded some three witnesses as liars, claiming they initially attempted to extort money from him and only turned to the prosecution when he refused to bribe them.

The DPM added that he is ready to table evidence, including visual, audio and written word to prove to the court that his claim is factual.

January 9 deadline

Already, Ruto and Sang have made an application to the judges seeking to compel the prosecution to disclose whether the five witnesses whose testimony led to the confirmation of charges against them would testify during their trial.

They are apprehensive the prosecution is reluctant to make the disclosure prior to the January 9 deadline in order to swamp them with new evidence, something which they feels is a tactic that will disadvantage them at the most critical stage.