This is the first instalment of a three-part series on the arrest warrant recently made public implicating a Kenyan lawyer and another Kenyan individual in connection with bribery allegations involving six ICC prosecution witnesses. This first part looks at the details given in the arrest warrant issued under seal on March 10, 2015 and made public in September 2015.
The International Criminal Court’s Pre-Trial Chamber II has now issued two arrest warrants in connection with bribery allegations involving three Kenyan individuals and eight prosecution witnesses.
On September 10, 2015, Pre-Trial Chamber II made public a redacted version of a second arrest warrant for witness tampering in Kenya. Judge Ekaterina Trendafilova made the decision to issue the warrant against lawyer Paul Gicheru and Philip Kipkoech Bett in March 2015. After the Kenyan authorities arrested Gicheru and Bett on July 30, 2015, Pre-Trial Chamber II decided to make redacted versions of the warrant and related decision public. The chamber determined there was no longer any reason to keep the warrant under seal.
The chamber issued its first arrest warrant for bribery on August 2, 2013 against former Kenyan journalist Walter Osapiri Barasa in connection with bribery allegations involving three prosecution witnesses. A redacted version of that decision and warrant was made public on October 2, 2013. The Kenyan High Court validated the arrest warrant, but Barasa has challenged it and the matter is currently before the Kenyan Court of Appeal.
The March 10 decision and warrant do not specify which ICC trial the six witnesses were involved in. However, five of the pseudonyms used for them in the arrest warrant match those of five witnesses who have already testified before Trial Chamber V(a) in the trial of Kenyan Deputy President William Samoei Ruto and former journalist Joshua arap Sang, which suggests that they may be witnesses in that trial. Given the context of these trials, this post assumes that the witnesses involved were witnesses in the Ruto and Sang trial.
Witness Tampering Allegations
The allegations against Gicheru and Bett fall under Article 70 of the ICC’s Rome Statute. This article covers offences against the administration of justice, which are distinct from the crimes against humanity and war crimes that are also covered by the Rome Statute.
The prosecution alleges that Gicheru and Bett paid or offered each of the six prosecution witnesses between 500,000 shillings (at current exchange rates, 4,734 US dollars) and five million shillings (47,344 US dollars) to withdraw as witnesses.
The warrant charges Gicheru with six counts of bribing or attempting to bribe a witness, and charges Bett with four counts of the same. The prosecution’s February 9 application remains confidential, and a redacted version has not been posted on the ICC’s website. But in her decision to issue the arrest warrant, Judge Trendafilova stated that the prosecution application alleged that Gicheru is the manager of a scheme to bribe witnesses. Judge Trendafilova said the prosecution alleged that Bett assisted Gicheru in this scheme.
The alleged bribery or attempts to bribe were made between April 2013 and September 2013. In the case of one witness, the suspects are alleged to have remained in touch with that witness until January 2014.
The Prosecution Witnesses
According to the arrest warrant, the witnesses Gicheru and Bett are alleged to have interfered with are: Witness 397, Witness 495, Witness 516, Witness 536, Witness 613, and Witness 800. Five of them appear to have testified in the trial of Ruto and Sang, with Witness 397 being the only one not to testify.
Of those who testified, Witness 495 and Witness 516 were part of a group of eight witnesses that in April 2014 was ordered to be compelled to appear in court by Trial Chamber V(a). The prosecution applied for such an order because the witnesses recanted their statements or ceased contact with the prosecution. Both of them testified between September 16, 2014 and September 26, 2014. Trial Chamber V(a) approved a deal the prosecution offered the witnesses: in exchange for testifying about their role in allegations of witness interference, they would not be prosecuted for offences against the administration of justice. The only caveat to this deal was they should not commit perjury, which is an offence under Article 70 of the Rome Statute.
The time the alleged bribery or attempted bribery took place coincides with the initial start date of the trial of Ruto and Sang, which was April 10, 2013. The trial was postponed twice before eventually starting on September 10, 2013. Lawyers for Ruto and Sang have repeatedly said in public statements and submissions that their clients have not been involved in any attempts to interfere with witnesses in their trial.
In their decisions to admit as evidence statements of five witnesses who had recanted or failed to testify, the judges of Trial Chamber V(a) stated that they did not see any evidence linking Ruto or Sang to any allegation of witness interference. They stated this because the prosecution presented them with 231 items, numbering 1,957 pages, to back up its allegations of witness interference. It was important for the judges to state this because one of the conditions for Ruto and Sang to appear before the ICC on summons is that they do not interfere with witnesses either directly or indirectly. If they are found to have interfered with witnesses directly or indirectly, that could lead to their summons being converted to arrest warrants.
The next article in this series will offer details about Witness 397 and Witness 536.