The International Criminal Court’s (ICC’s) prosecutor has withdrawn at least seven witnesses in the case against President Uhuru Muigai Kenyatta over the past year because the witnesses fear testifying, they have recanted their earlier statements to investigators, or for other unspecified reasons.
Following the withdrawal of one witness early in 2013, the prosecution had planned to call 30 witnesses in total in Kenyatta’s trial, which is scheduled to start on February 5. This is what the Office of the Prosecutor (OTP) had indicated in July last year in a confidential annex to an application notifying the court of the prosecution’s intention to withdraw three witnesses at the time. The total number of witnesses was made public during a status conference on September 6, 2013. Since then the prosecution has indicated it wishes to withdraw another three witnesses, bringing the total number of witnesses expected to testify at Kenyatta’s trial to 27.
Two of the witnesses the prosecution has withdrawn had said they did not wish to testify because they feared for their safety. The prosecution withdrew two others because they recanted their evidence. Two other witnesses told prosecutors they no longer wanted to testify but the prosecution does not give a reason in the public redacted documents. As for the seventh witness, the prosecution decided it no longer needed that witness’ evidence to prove its case.
The withdrawal of witnesses on the grounds of safety is significant because they remain anonymous to the public. The prosecution witnesses have been known to the defense since as early as January 9, 2013. This was the deadline Trial Chamber V had set for the prosecution to disclose all of its evidence to the defense. However, the judges granted the prosecution an exception to apply to delay disclosure of the identity of witnesses under ICC protection until a date closer to when they are scheduled to testify. The witnesses’ redacted statements, however, should have been given to the defense by the January 9, 2013 deadline.
The latest withdrawal of witnesses was made on December 19, 2013 in an application by ICC Prosecutor Fatou Bensouda for further postponement of the trial by three months. In her application, Bensouda argued that her team needs the time to gather additional evidence because she had decided to withdraw Witnesses 11 and 12. She said withdrawing the two witnesses will mean her case cannot meet the threshold of beyond reasonable doubt necessary to secure a conviction.
A review of court documents show that three of the seven witnesses the prosecution has withdrawn in the past year are what the prosecution considered insiders. These are witnesses who, if they had taken the stand, would have been making allegations against Kenyatta about his alleged role in the violence that nearly tore apart Kenya in early 2008.
The prosecution’s strategy had been to open the Kenyatta trial with the testimony of insider witnesses including Witness 11. In pursuit of this strategy, on October 11, 2013, Bensouda had applied for the witnesses to be protected against self-incrimination during their testimony. Trial Chamber V(b) is yet to make a ruling on the application. It was also in furtherance of this strategy that Bensouda supported postponing the trial to February this year, from November 12 last year, which Kenyatta’s lawyers had applied for.
At the time, Bensouda said if the trial was to be held on November 12, then the prosecution would have to hold back all the Mungiki insider witnesses it had planned to call in order to comply with a court ruling. On October 23, 2013, the trial chamber agreed to allow the prosecution to add a new witness to its case on condition that the witness would be scheduled to testify in the later stages of the trial so that Kenyatta’s lawyers would have time to prepare their defense.
The judges also ruled that any witnesses whose testimony was connected to that of the new addition, Witness 548, should be scheduled to testify in the latter part of the trial. This meant that the Mungiki insiders Bensouda had planned to call at the start of the trial would have to testify later if the trial started on November 12. The judges reluctantly decided to postpone the trial to February 5, which allowed the prosecution to retain its strategy of opening the trial with insider witnesses.
This strategy is different from the one the prosecution has employed in the separate trial of Kenyan Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang. The prosecution opened that trial with crime-based witnesses. These are witnesses who survived or saw the crimes that Ruto and Sang are alleged to have orchestrated. These witnesses, however, do not make any direct allegations against the accused.
The prosecution’s strategy of opening with insider witnesses in the Kenyatta trial should not be in jeopardy because of Bensouda’s December 19 application. Six Mungiki insider witnesses had been listed among the first 10 prosecution witnesses. Witness 11 was one of them.
However, it seems Bensouda’s concern is the quality of Mungiki insider witnesses the prosecution is able to call, not the quantity. This may explain her request for more time to gather additional evidence now that she is withdrawing Witnesses 11 and 12.
In court documents, the three insider witnesses the prosecution has now withdrawn have been identified as either Mungiki insiders or former Mungiki insiders. The three are Witnesses 4, 11, and 12. Mungiki is the criminal gang that the prosecution has said carried out the attacks in Nakuru and Naivasha towns in late January 2008. Witnesses 4, 11, and 12 had been expected to state what they knew about the planning of the violence in Nakuru and Naivasha and their role in it.
According to two prosecution filings, Witnesses 4 and 12 have recanted their testimony after several interviews with staff of the OTP. The most recent to change their testimony is Witness 12, who on December 4 last year told the prosecution that he was not present at an alleged meeting in State House on December 30, 2007. This was after asserting to the prosecution in four previous interviews that he had been at the State House meeting that he had alleged was called to discuss violence after the December 2007 elections. In addition to recanting his testimony, Witness 4 also claimed he had been offered a bribe, which he accepted, to change his testimony.
In her December 19, 2013 application, Bensouda said that Witness 11 was no longer willing to testify. It is unclear from the application what had made Witness 11 change his mind.
Two of the seven witnesses the prosecution has withdrawn were going to testify about sexual and gender-based violence committed in Nakuru and Naivasha in late January 2008. Two of the charges against Kenyatta relate to sexual and gender-based violence. One of the two, Witness 66, had only been added to the prosecution’s list in October last year to replace Witness 426. These witnesses fall in the category of crime-based witnesses.
On July 16, 2013, Bensouda notified the court that she was withdrawing Witness 426. The public version of the July 16, 2013 application is heavily redacted, so it is difficult to know the reason Witness 426 is no longer willing to testify. In that application, Bensouda said that she may seek the court’s permission to add a replacement witness to her list if she was able to find one.
Two months later Bensouda applied to the court to add Witness 66, arguing that the witness would be able to speak about the widespread rape and gender-based violence in Nakuru and Naivasha. In her September 13, 2013 application, Bensouda outlined the aspects Witness 66 would be able to testify on that were similar to what Witness 426 had been prepared to speak on. Three months later, however, Bensouda filed a notice to inform the court that Witness 66 was no longer willing to testify. In her December 16, 2013 notification, Bensouda said that Witness 66 did not wish her identity be disclosed because she fears for her personal safety and that of her family.
The withdrawal of Witness 66 is a blow to the prosecution’s case because the witness was key to the prosecution proving the facts of two of the five counts of crimes against humanity against Kenyatta. The judges of Trial Chamber V(b) said as much in their unanimous October 23, 2013 decision to allow the prosecution to add Witness 66 to its case.
“The Chamber is satisfied that Witness 426’s withdrawal means that P-66’s proposed evidence brings to light otherwise unknown facts which have a significant bearing upon the case,” the judges wrote in their ruling.
In her July 16, 2013 notice to withdraw Witnesses 5, 334, and 426, Bensouda does not state what Witness 5 was going to testify about or what category Witness 5 falls in. However, in the heavily redacted document it is clear that Witness 5 was no longer willing to testify for security reasons. In the July 16, 2013, filing Bensouda said that the witness was convinced that there was at least one attempt to uncover his identity.
As concerns Witness 334, Bensouda said that after reviewing the evidence of Witness 334, the prosecution had concluded that it was no longer needed to prove its case. Bensouda withdrew Witness 334 in order to not have more witnesses than needed.