International Criminal Court (ICC) judges could order the case against former Public Service Chief Francis Kirimi Muthaura be re-examined because the only witness who directly places him in meetings to allegedly plan and organize violence five years ago has been compromised.
ICC Prosecutor Fatou Bensouda said she did not object to the case being referred back to the pre-trial chamber to reconsider the prosecution’s evidence. Bensouda said this in a submission made public Tuesday that responds to an application by Muthaura’s defense team asking Trial Chamber V to order his back to the pre-trial chamber.
“The witness whose statement is at issue was essential on the issue of Mr Muthaura’s criminal responsibility and, in fact, was the only direct witness against him. Hence, the confirmation decision, if stripped of references to the witness’ evidence, might not establish substantial grounds as a matter of law,” Bensouda said in the submission.
To confirm charges against a suspect, a pre-trial chamber has to be satisfied that the prosecution has presented evidence that shows there are substantial grounds to move the case to trial.
Muthaura’s defense team, together with that of Deputy Prime Minister Uhuru Muigai Kenyatta, made the application after reviewing the evidence they received from the prosecution ahead of the trial and found that the prosecution will no longer be relying on witness four to argue their case. The prosecution had relied on statements recorded by “Witness 4” to compel Pre-Trial Chamber II to confirm five counts of crimes against humanity against Muthaura and Kenyatta for their alleged roles in the violence that followed Kenya’s disputed 2007 presidential poll.
Bensouda said the witness was the only one that placed Muthaura at an alleged planning and organizing meeting, but in an interview the prosecution conducted after the charges were confirmed he admitted taking a bribe to withdraw his evidence. Bensouda said that the witness alleges in a May 2012 statement that the bribe was paid by individuals claiming to represent Kenyatta. The witness has given the prosecution emails and bank statements to back his bribery allegations, Bensouda said.
The witness also told the prosecution that in his earlier statements to them he lied about attending two meetings, one of which was at the official residence of Kenya’s president, State House. The witness had claimed that the meetings discussed the planning and organizing of violence that occurred in late January 2008 in Naivasha and Nakuru towns. The witness had placed Muthaura at one of those meetings and Kenyatta at both.
The witness did stand firm on the details of a third meeting held at a private members’ club, Nairobi Club, Bensouda said. However, after reviewing more closely an affidavit the witness swore as part of an application for asylum in an undisclosed country, the prosecution realized he had omitted an important detail about the January 2008 meeting at Nairobi Club: the witness was not at the meeting but learned about it from a member of the criminal gang, Mungiki, which had been contacted to execute the attacks in Naivasha and Nakuru.
Bensouda said the prosecution made an error in not disclosing this to the defense ahead of the pre-trial hearings in September 2011 but stated that it was not done in “bad faith.” She explained that the lawyer reviewing the asylum application affidavit read the paragraph about the Nairobi Club meeting without the benefit of the statements “Witness 4” made to the prosecution in preparation for its pre-trial hearings.
“With the benefit of hindsight, the affidavit could and should have been disclosed to the Defence prior to the confirmation hearing, with redactions to information that could have revealed Witness 4’s place of residence,” said Bensouda. “The reality is, however, that a review of the relevant records demonstrates that the potential significance of paragraph 33 was not discovered until after the confirmation hearing, many months after the Prosecution had submitted its redactions application to the Pre-Trial Chamber.”
The ICC prosecutor, however, objects to the Kenyatta defense team’s application to have his case also sent back to the pre-trial chamber. Bensouda said that “Witness 4” is not the only who makes direct allegations against Kenyatta and asked the judges of Trial Chamber V not to accept the Kenyatta application.
“Unlike Mr Kenyatta, Witness 4 was the principal source of evidence that supported the Prosecution’s charges against Mr Muthaura at the confirmation stage,” Bensouda said. “Unlike Mr Kenyatta, there would not have been sufficient evidence to confirm the charges against Mr Muthaura without Witness 4’s evidence.”
In her submission, Bensouda does not state whether the prosecution has taken further steps in light of the bribery allegations “Witness 4” has made. Under Article 70 of the Rome Statute that establishes the ICC, it is an offense to “corruptly influence” a witness. If anyone is convicted by the ICC of “corruptly influencing” a witness they face a maximum sentence of five years or a fine to be determined by the court.
In the case of “Witness 4”, the prosecution can apply to the court to charge the individuals who allegedly bribed the witness. It is not clear whether the prosecution has investigated the link between those individuals and Kenyatta. This is important because if there is a link, it can be the basis on which the prosecution can apply to the court to examine whether Kenyatta is abiding by the conditions of his summons. One condition that Kenyatta must abide by is that he should not be in direct or indirect contact with anyone believed to be a witness in his case.