ICC Seeks to Reassure Kenyan Violence Victims

Ahead of two trials due to start in The Hague in the coming months, the prosecutor’s office at the International Criminal Court, ICC, has sought to reassure Kenyans about the strength of its case against the country’s leaders.

Despite significant challenges surrounding its investigations in Kenya the Office of the Prosecutor, OTP, has said the public “should not read too much into” revelations that certain witnesses who were due to testify before the court have recently been replaced.

Kenya’s president, Uhuru Kenyatta, and deputy president William Ruto are facing trial at the ICC on charges of crimes against humanity for orchestrating the electoral violence that erupted in the aftermath of a disputed general election in Kenya in December 2007.

Proceedings against Ruto, who will be tried alongside former journalist Joshua Arap Sang, are set to start in The Hague on September 10.

Kenyatta’s separate trial is scheduled for November 12.

Several witnesses due to testify in both cases are understood to have retracted their testimony because of ongoing security concerns.

ICC prosecutor Fatou Bensouda has repeatedly spoken about “unprecedented” levels of interference experienced by her office in Kenya as it seeks to prosecute the country’s top officials.

But this week, the OTP’s director of jurisdiction, complementarity and cooperation division, Phakiso Mochochoko sought to reassure Kenyans that the prosecution’s case remains on course.

“We continue to believe in our witnesses,” Mochochoko told journalists during a conference call with OTP members in The Hague. “We may have lost some of our witnesses, but at the same time our case is continuing.

“[On] the question of whether the convictions will be secured or not – really, let justice take its course. Let us begin the trial, let us present our case to the judges, and it will be for the judges to decide on the basis of what we give them,” Mochochoko added.

Answering questions about the withdrawal of a number of prosecution witnesses on security grounds, the OTP representatives outlined procedures which allow the prosecutor to seek permission from judges to bring additional witnesses in their place.

“The witness list can change, and that need not be a cause for reading too much into a change in the prosecutor’s case,” Shamiso Mbizvo, associate international cooperation advisor within OTP, said.

The ICC opened an investigation in Kenya after two months of ethnic and political violence in late 2007 and early 2008 brought the country to its knees.

More than 1,100 people were killed, 3,500 injured and over 600,000 others displaced from their homes by violence that hit six of Kenya’s eight provinces, following a disputed presidential election in December 2007.

Despite repeated warnings from the ICC and the wider international community that Kenya should set up its own mechanisms to investigate those behind the unrest, the Kenyan government failed to do so.

The ICC launched its own investigation in March 2010.

With the two trials fast approaching, those who suffered during the bloodshed have expressed increasing concern at what is seen as a weakening of the prosecution’s case against the three suspects.

In March, prosecutor Bensouda was forced to drop charges against a fourth suspect, former Kenyan civil service chief Francis Muthaura, after a key witness dropped out.

Subsequent revelations about witness withdrawals and legal challenges by the defence over the credibility of the prosecution’s remaining witnesses have caused further alarm.

Last month Ruto’s lawyer, Karim Khan, complained to judges that several witnesses due to testify for the prosecution had colluded to fabricate evidence to incriminate his client.

“Eight witnesses are engaged in a concerted process to contaminate prosecution investigations to a significant extent through the deliberate and organised fabrication of evidence,” Khan wrote in a July 19 submission to the court.

This week, the OTP denied all allegations that witnesses had been coached, or that other misconduct had occurred during its investigation of cases.

“We certainly categorically state that the OTP adheres to the highest standards of collection of evidence and handling of witnesses,” Mochochoko said. “It is not our role or duty, or ever contemplated by the OTP, to coach any witnesses.”

Coming on top of the withdrawal of the case against Muthaura and ongoing security threats to witnesses, such allegations against the prosecution have led many to doubt whether it will be able to secure convictions against the three suspects.

“The ICC cases are uncertain. It’s a matter of time before they collapse,” said 53-year-old Moses, who lives in Kenya’s Rift Valley, the region worst hit by the 2007-08 violence. “The talk on the streets is now the same – these cases are not going anywhere.”

Victims of the 2007-08 violence are particularly aggrieved given that five-and-a-half years on, no senior-level perpetrator has yet been brought to justice.

From what he has heard, Chrispine, a victim of the violence in Rift Valley, is worried that the prosecution’s evidence will not stand up in court.

“I doubt whether the remaining witnesses will be of any value to the prosecutor considering the coaching and bribing claims leveled at Fatou [Bensouda] by both defence teams,” he told IWPR. “While these claims may be unfounded, its damage to the whole case is great.”

But speaking on behalf of the OTP this week, Mbizvo sought to challenge the negative perceptions of the prosecutor’s actions and in particular allegations about the credibility of witnesses.

“It is not for the media or for observers to determine before the start of a trial whether a given witness is a prosecution witness or is reliable,” Mbizvo said. “The decision on whether a witness is credible or reliable will be taken by independent judges after a very thorough process.”

Mbizvo pointed out the ICC employs an adversarial legal process in which prosecution witnesses are presented in court and then cross-examined by the defence. The latter has ample opportunity to test witnesses’ credibility and to probe any gaps in their testimony.

“In every trial, the prosecution puts forward witnesses and the defence challenges their credibility – that’s normal,” Mbizvo said. “It is something to be expected. What we have seen is a lot of speculation and concern when the defence has challenged the reliability of prosecution witnesses. But it is worth reminding everyone that that is a typical thing. It is something we expect from the legal process.”

Mbizvo added that her office had every confidence in the individuals the OTP had selected to testify.

“The prosecution chooses people [to give evidence] whom it trusts, who we consider to be reliable,” she said. “We vet them, we present them. The defence challenges them and ultimately the judges will weigh all the information they have heard and take a decision on [their] credibility and reliability.”

Robert Wanjala is a freelance reporter in Eldoret, in Kenya’s Rift Valley region.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.