The International Criminal Court (ICC) has confirmed that a Kenyan man who has been reported killed in Kenya was once under its protection but was not on the prosecution’s witness list.
The statements by the court’s Registrar, Herman von Hebel, and the Office of the Prosecutor (OTP) represent the first time the ICC has confirmed the identity of someone in the Kenya cases who has been in its protection program.
The Registrar and the OTP said this week that Meshak Yebei, whose body was found on January 2 in Nandi County in Kenya, had been relocated under the court’s protection program but had left it. The statements did not say where Yebei had been relocated to or how long he had been under the court’s protection.
Family members of Yebei have told newspapers in Kenya that the last time he was seen alive was on December 28, 2014 when he went to buy water near a health center in Turbo, which is in Uasin Gishu County. They believe he was abducted and killed after this. His body was reportedly found in river and family members identified it at the Kapsabet mortuary.
“We express our profound condolences to the family,” said von Hebel in his statement issued on Tuesday.
“The Court is profoundly concerned by this grave reported incident. It stands ready to provide the local authorities with any assistance, if required, in their investigations. Ensuring the safety and security of witnesses is a cornerstone of fair trials,” continued von Hebel.
In its statement on Friday, the OTP said it had contacted Yebei during the course of its investigations into the post-election violence in Kenya. The OTP, however, said that Yebei was not included in its list of witnesses because it had information that implicated Yebei in a scheme to corrupt prosecution witnesses in the trial of Deputy President William Sameoi Ruto and former journalist Joshua arap Sang.
Ruto and Sang are on trial at the ICC on three counts of crimes against humanity each for their alleged roles in the bloodshed that followed the December 2007 presidential poll.
It has also been reported that Ruto’s lead lawyer, Karim Khan, wrote to the Director of Criminal Investigations in Kenya asking that the police thoroughly look into the death of Yebei. Khan is reported to have said Yebei was a defense witness, who was critical to their case.
Allegations of witness intimidation and inference have pervaded both Kenya cases at the ICC, but whenever officials are asked about specific allegations they have only addressed them in general terms. Only on two separate occasions has the prosecution given details of specific allegations of witness intimidation or interference. Until this week, the ICC has not identified anyone who is or has been under one of its protection programs in the Kenya cases.
Yebei’s death has generated some political heat in Kenya. Some leaders of the Jubilee coalition of President Uhuru Muigai Kenyatta and Ruto claimed this week that the OTP is involved in Yebei’s death. These politicians were led by the Majority Leader in the National Assembly, Aden Duale, who is a member of Ruto’s United Republican Party (URP). The party forms the Jubilee coalition with Kenyatta’s The National Alliance (TNA) party.
“The Office of the Prosecutor wishes to categorically state that any suggestion that the Office of the Prosecutor was involved in Mr. Yebei’s alleged abduction and murder is both outrageous and utterly false. Nothing could be further from the truth,” said the OTP’s statement on Friday.
The Jubilee politicians also claimed that Eldoret-based human rights defender Ken Wafula was a prime suspect in Yebei’s killing. Wafula, who runs the Centre for Human Rights and Democracy, has denied the claims. His name has come up several times in the trial of Ruto and Sang. Ruto’s lawyers have raised his name while cross-examining some prosecution witnesses in pursuit of their theory that there are individuals and organizations in Kenya that coached witnesses to implicate their client at the ICC.
The issue of witness intimidation and inference became the subject of litigation in the trial of Ruto and Sang with the prosecution applying to the court to compel eight reluctant witnesses to testify. In its application, the prosecution gave some details about the alleged intimidation some witnesses faced and also the alleged bribes they were offered. The defense opposed the application, but Trial Chamber V(a), by a majority decision, ordered that the witnesses be compelled to testify. That order was extended later to a ninth witness. The Appeals Chamber unanimously upheld the majority decision of Trial Chamber V(a).
To date four of those witnesses have testified at the ICC via video link from Nairobi. The four were declared hostile prosecution witnesses by Trial Chamber V(a), which meant that the testimony they provided was viewed to favor the defense more than the prosecution. The declaration that the four were hostile prosecution witnesses also allowed the prosecution to cross-examine them about the prosecution theory of a scheme to compromise witnesses to undermine its case.
Separately, the prosecution has also investigated allegations that a former journalist, Walter Barasa, bribed or attempted to bribe three prosecution witnesses mid last year. Pre-Trial Chamber II has issued an arrest warrant for Barasa. The Kenyan government applied to the High Court to effect the arrest warrant, which the High Court ordered should be done. Barasa is challenging this at the Court of Appeal.
In an interview with the Open Society Justice Initiative in June last year, von Hebel described the ICC’s protection program as “vulnerable” and the Kenya cases posed “tremendous challenges.” He, however, said that changes being made at the time within the court’s Victims and Witnesses Unit should have some impact and lead to improvements.
The trial of Ruto and Sang is scheduled to resume on Monday after adjourning for the winter recess. The prosecution indicated in a December 22, 2014 application to Trial Chamber V(a) that they plan to call three witnesses during this session.