This is the second part of a three-part article on the witnesses the International Criminal Court (ICC) prosecution is seeking to be compelled to testify in the trial of Kenyan Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang. This part looks at the circumstances surrounding the withdrawal of the witnesses from the prosecution case.
Some of the witnesses simply cut off all communication with the Office of the Prosecutor. Others recanted their testimony. Others yet had Kenyan lawyers notify the prosecution they are withdrawing from the case.
These witnesses have had to deal with all sorts of pressures from being away from home to being offered bribes to being threatened. In the case of one witness, someone they know threatened to commit suicide if they went ahead and testified. Then there are the calls and meetings with prosecution staff who wanted to know why they were withdrawing and whether they would reconsider their decision.
The details of how Witness 15 and Witness 16 withdrew have already been given in first part of this article. The circumstances of the withdrawal of Witness 323 are unclear. This is because Witness 323 was not included in the prosecution’s December 5, 2013 application.
The prosecution filed a supplementary application on February 20, 2014 asking the judges to add Witness 323 among the witnesses it wanted Trial Chamber V(a) to issue summons to. The prosecution’s February 20 supplementary application and its six annexes were filed as confidential, meaning they are not available to the public. The judges referred to the supplementary application in their decision, which is publicly available, as did the defense lawyers in their public, redacted submissions.
Witness 336 was provisionally admitted into the ICC Protection Program around the same time his identity was disclosed to the defense, according to the December 5, 2013 application made by ICC Prosecutor Fatou Bensouda. The disclosure was made on February 11, 2013, and in early August Witness 336 broke off contact with the ICC’s Victims and Witnesses Unit and the prosecution. Later that month, the witness contacted the prosecution through another witness and said he wanted to discuss the pressure that was being exerted on his family. This was on August 28, 2013. The following day the prosecution called the witness, who agreed to a meeting and agreed to make arrangements the next day. Prosecution staff was unable to contact Witness 336 on August 30, but on the same day, Witness 336’s wife called someone who later received a text message from her saying, “bye bye … for ever.” The name of the person Witness 336’s wife contacted is concealed in the public version of the December 5, 2013 application.
The prosecution alleges that Witness 336 was offered a two million shillings bribe on August 28 and accepted it sometime before September 2. The source of the prosecution’s allegation is redacted in the public version of the December 5, 2013 application. The prosecution also alleges that Witness 336 encouraged the person he is alleged to have confided in to also take a bribe.
The prosecution has made bribery allegations against three witnesses in the December 5, 2013 application. These are Witness 16, Witness 336, and Witness 516. Only Witness 336 is also involved in the separate case the prosecution has initiated against former prosecution intermediary and journalist Walter Osapiri Barasa.
It seems that the allegation of the August 28 bribe offer made to Witness 336 is separate from the Barasa case because it took place more than three weeks after the arrest warrant for Barasa was issued under seal. The arrest warrant, which was opened in October 2013, stated that the prosecution alleges Barasa offered Witness 336 between one million shillings and 1.5 million shillings to withdraw as witness. This alleged offer was made sometime between May 20, 2013 and July 21, 2013 at or near Kampala, the capital of Uganda.
The multiple bribery allegations in the prosecution’s December 5, 2013 application may explain why Sang’s lawyer, Joseph Kipchumba Kigen-Katwa said the prosecution is avoiding filing another bribery case and instead tagging it with the request for summons.
“The Defence submits that in reality, this Request [the December 5, 2013 application] for summons is a back-door attempt by the prosecution to bring Article 70 allegations against the accused or others into the main trial. This is unacceptable,” Kigen-Katwa wrote in his January 10 submission in response to the prosecution’s request for summons.
Article 70 is the provision in the Rome Statute that covers offences such as a witness giving false testimony, allegations of bribery, or intimidation of a witness or threats made against a court official.
There is another connection between the witnesses the prosecution wants compelled to testify before Trial Chamber V(a) and the case against Barasa. When the arrest warrant against Barasa was made public, he went to the Kenyan High Court to challenge it. That case is ongoing. However, Witness 15, Witness 16, and Witness 336 are reported to have signed affidavits in support of Barasa’s case, Bensouda said in the December 5, 2013 application.
Through a Kenyan law firm, J. N. Njuguna and Company, Witness 397 informed the prosecution in an affidavit he signed that he wished to withdraw as a witness. Witness 397, however, did not recant his statement to the prosecution. The prosecution received this correspondence and affidavit on May 10, 2013. This is almost two months after the prosecution disclosed to the defense the identity of Witness 397, according to the December 5, 2013 application. That disclosure was made on February 18, 2013 and around the same time the prosecution said they relocated Witness 397 to an unnamed location.
After receiving the affidavit, the prosecution contacted Witness 397 several times to find out why he had withdrawn as a witness. During these conversations, the prosecution said Witness 397 assured them that he would still cooperate with them despite the affidavit he had signed. The prosecution arranged several face-to-face meetings, but the witness did not show up. The last time the prosecution spoke to Witness 397 was August 2, 2013. After that his phone was switched off.
The prosecution said that Witness 397’s status as an ICC witness was well-known in the Rift Valley region, and he was being pressured to cease cooperating with the court.
As for Witness 495, the prosecution said they remained in touch with him until September 2013 when they met the witness to help him get a visa so that he could testify in The Hague. The prosecution revealed the identity of Witness 495 to the defense on March 13, 2013. The section on Witness 495 in the December 5, 2013 application is short and heavily redacted, so there is not much detail. Witness 495 checked out of a hotel he had been booked in, and the prosecution has not been able to reach him since. Details of where Witness 495 had been located or the date he checked out have been redacted.
The prosecution said Witness 516 failed to attend a July 6, 2013 meeting and ceased to communicate with court officials after that. The identity of Witness 516 was disclosed to the defense on February 18, 2013. The witness did not leave Kenya, but his family had been relocated in December 2012. The section on Witness 516 makes reference to a first payment of 100,000 shillings. Part of the sentence is redacted, so it is unclear whether the prosecution is alleging Witness 516 received a bribe or was involved in bribing someone else.
The prosecution also said the status of Witness 516 as an ICC witness was well-known in the Rift Valley, and he was being pressured not to cooperate with the court. Witness 516 has remained out of touch since July 2013, but the prosecution said they have not received an affidavit from him confirming that he has withdrawn as an ICC witness.
Witness 524 was threatened either directly or indirectly on April 18, 2013. It is unclear because part of the sentence describing the threat is redacted. The threat, however, occurred a day after the prosecution disclosed Witness 524’s identity to the defense. After that threat he was pressured to cease being an ICC witness. The information about who pressured him to withdraw is redacted in the public version of the December 5, 2013 application. Someone whose name is also redacted threatened on July 26, 2013 to disown Witness 524 and commit suicide if he did not withdraw being an ICC witness.
On August 1, 2013, Witness 524 sent an email to which he attached a letter that stated he was formally withdrawing as a prosecution witness. On August 31, 2013, the Office of the Prosecutor received an email and attachments from Arap Mitei and Company Advocates that included an affidavit reconfirming Witness 524’s withdrawal as a witness and the reasons for doing so.