Kenya is non-committal on cooperating with the International Criminal Court (ICC) in securing attendance of a witness required to testify in lawyer Paul Gicheru’s case scheduled to open on February 15.
Nairobi is also blowing hot and cold on ICC request to help in the tracing the “missing” hostile witness, who was initially in good terms with the prosecutors before turning against them.
ICC deputy prosecutor James Stewart wants Trial Chamber III Judge Miatta Miaria Samba to ask the Kenyan government to offer state cooperation by ensuring the witness appears in court using all means available under the law.
The prosecutor also wants the judge to summon the witness, identified as P-0743, to testify via video-link.
But Solicitor General Kennedy Ogeto has said the assistance and cooperation of the government will depend on the circumstances of the court’s request or order.
“Once we get the request, we will look at it, consider the circumstances and the legality of the request then we will respond. There is no commitment now until we get the request and look at the surrounding circumstances,” Mr Ogeto told the Nation in an interview.
“Where it is possible to provide cooperation, we will provide but at times that court makes requests that are impossible or difficult to implement.”
He continued: “Like now telling us to trace somebody. If that person is not here, what do we do? We do not know who they are talking about and he may not even be here. It is very possible he is not here.”
Nairobi, he added, would also check if the court provides sufficient information because “at times they provide information that is not adequate”.
In seeking compulsory attendance of the witness, Mr Stewart says despite the prosecution using of all reasonable efforts at its disposal to locate or contact him to secure his voluntary attendance at trial, the witness has remained unreachable.
He states that the witness was initially in communication with the Office of the Prosecutor (OTP) but became unresponsive and uncooperative. The witness then went ahead to cut all communications.
“Given the upcoming commencement of the trial and the lack of progress in locating the witness, it is necessary to take urgent steps to obtain the assistance of the Kenyan authorities to summon him to testify before the chamber,” adds Mr Stewart.
The prosecutor wants the witness to testify, as a matter of obligation upon him, before the chamber, by video-link at a location they have not disclosed. He says the witness is among the people that the OTP relied upon for the Ruto-Sang case, who prior to his testimony in January 2015, withdrew his cooperation with the court.
“In light of his evidence against Gicheru, and after the latter’s surrendered to the court in November 2020, the prosecution tried to re-establish contact with the witness. It pursued all available means, directly and through the use of third parties, but to no avail. The witness remains unreachable to this date,” says Mr Stewart.
Though the witness is not among those allegedly bribed by Mr Gicheru, the prosecution says the anticipated testimony has a sufficient nexus to the crimes charged.
“At a minimum, his evidence—if accepted—will corroborate the evidence of other prosecution witnesses as to the existence of the common plan, the identity of its members, it’s modus operandi and the accused’s role in its activities,” states the prosecutor.
The prosecutor claims the witness linked another key witness, Meshack Yebei, to a team that bribed witnesses in the Ruto-Sang case. Mr Yebei was later killed by unknown people when he was due to testify in the trial of Dr Ruto. He, according to prosecutors, was a member of a corruption network group that worked on how to scuttle the case.
His mutilated body was found floating in a river on January 2, 2015 after his abduction on December 28, 2014 from Turbo town in Eldoret where he had taken a child for treatment. Mr Gicheru is accused of running a witness corruption scheme that sabotaged the case against Dr Ruto and Mr Ruto, who had been charged with masterminding the 2007/8 post-election violence.
Documents filed by the prosecutor indicate that lawyer Gicheru, who is facing charges related to interfering with the court witnesses by offering them millions of shillings in bribes, in his statement has admitted knowing and working together with Mr Yebei.
Both Mr Gicheru and Mr Yebei were members of an alleged well-oiled bribery and coercion machine that planned how to scuttle Dr Ruto’s case through bribery of witnesses.
“For example, Gicheru admits that he knew and met Meshack Yebei—an alleged member of the common plan—at Gicheru’s office in Eldoret. He admits that he knew Ruto and Silas Simatwo—another alleged member of the charged common plan,” says Mr Stewart.
He states that Mr Gicheru’s statement contains admissions made ‘in relation to information relevant to the charged events’.
Another admission by Mr Gicheru is that he knew and spoke to a witness named P-0397, both in person and by phone, in 2013 and that the latter visited his office in Eldoret.
Witness P-0397 has since also refused to cooperate with the ICC and the OTP cannot locate him.
The prosecution alleges that Mr Gicheru was the manager of the common plan aimed at benefiting Dr Ruto by scuttling the case.
The intermediaries of executing the plan, prosecutors say, included former Turbo MP Elisha Busienei and Mr Silas Kibet Simatwo, chair of the board of Amaco Insurance company. Other actors in the common plan included Mr Isaac Maiyo, who was the former chairman of the Eldoret North Constituencies Development Fund, Mr J.N. Njuguna, Mr Arap Mitei and Mr Gregory Mutai.
Another man, identified as Mr Kogo, was alleged to have been Mr Gicheru’s bodyguard. It has also emerged that Mr Gicheru was in contact with the prosecutors since October 2018 before he surrendered to The Hague in November 2020. Documents indicate that he had an interview with the OTP on October 20, 2018.
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