This is the second 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 prosecution witnesses. Given the context of these trials, this post assumes that the witnesses involved were witnesses in the Ruto and Sang trial. This part sketches the bribery allegations involving Witness 397 and Witness 536 as well as giving a summary of Witness 536’s testimony in court. Part 1 can be read here.
The International Criminal Court (ICC) Prosecutor alleges that Kenyan lawyer Paul Gicheru and fellow Kenyan Philip Kipkoech Bett bribed or tried to bribe six prosecution witnesses. Given the context of the case and overlapping witness pseudonyms, it appears that most of these witnesses were insider or linkage witnesses in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Insider or linkage witnesses in trials at the ICC are witnesses who can link the accused to the alleged crimes. They may be “insiders” of a criminal group, for example, or provide proof of an accused’s responsibility for the criminal conduct of others. Alternatively, such witnesses may testify about their knowledge of how crimes were financed, organized, or executed. Usually they are able to do this because they were involved at some level.
Based on their testimony before Trial Chamber V(a), the March 10 decision of Pre-Trial Chamber II’s Single Judge Ekaterina Trendafilova and other court documents, the IJ Monitor has been able to sketch out each of the six prosecution witnesses we assume Gicheru and Bett are alleged to have bribed or attempted to bribe.
As part of the trial process, the trial chamber required the prosecution to make full disclosure of its case by January 9, 2013, with some exceptions. The chamber also allowed the prosecution to apply to make full disclosure of the identities and evidence of witnesses under the court’s protection as close as 45 days before the witness was due to testify. Based on a December 5, 2013 prosecution application, the dates of the disclosure of the identities and evidence of Witness 397, Witness 495, and Witness 516 are publicly known. The disclosure dates of the other witnesses are not known.
The prosecution described Witness 397 as an insider witness in its December 5, 2013 application. The prosecution also said they disclosed his identity to the defence on February 18, 2013 and around the same time relocated the witness to an undisclosed location. He is the only one of the six prosecution witnesses whose pseudonym does not match that of a witness who testified before Trial Chamber V(a).
According to Judge Trendafilova’s March 10 decision, the prosecution has alleged that Philip Kipkoech Bett and someone else approached Witness 397, told him about a scheme to corrupt witnesses, and then took him to meet Paul Gicheru. According to the March 10 decision, Gicheru is then alleged to have negotiated and agreed with Witness 397 that he would be paid five million Kenyan shillings (approximately $47,500 US dollars) to withdraw as a prosecution witness. On April 27, 2013, Gicheru is alleged to have paid Witness 397 600,000 shillings (US $5,700) in cash. On April 30, 2013, Gicheru is alleged to have paid Witness 397 another 400,000 shillings (US $3,800). Allegedly, the witness then signed, in an unspecified office and in the presence of Gicheru, an affidavit stating that he no longer intended to testify and wanted to withdraw his statement to the prosecution. This is supposed to have taken place in Eldoret, Kenya.
In the December 5, 2013 application, the prosecution submitted that Witness 397 sent it a signed affidavit via a Kenyan law firm, J. N. Njuguna and Company, stating that he wished to withdraw as a witness. In that application, the prosecution stated that Witness 397, however, did not recant his statement to the prosecution. The prosecution said it received this correspondence and affidavit on May 10, 2013.
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 of Kenya and he was being pressured to cease cooperating with the court.
In the March 10 decision, Judge Trendafilova stated that the prosecution alleged Witness 397 remained in contact with Gicheru until at least January 2014.
Witness 536 was the first witness to testify in the trial of Ruto and Sang. She is also referred to in both the arrest warrant for Walter Osapiri Barasa and the one for Gicheru and Bett.
According to the August 2, 2013 decision of Pre-Trial Chamber II’s Single Judge Cuno Tarfusser, Witness 536 told prosecution investigators that Barasa contacted her several times but he did not make any offer to her in exchange for which she would withdraw as a prosecution witness or recant her statement. Witness 536 recorded statements to this effect on May 24, 2013 and July 23, 2013. Allegedly, Witness 536 was going to be made an offer or was made an offer on July 25, 2013. According to the second count of the arrest warrant Tarfusser issued, Barasa is alleged to have bribed or attempted to bribe Witness 536 and her husband with a total of 1.4 million shillings (US $ 13,621) sometime between May 20, 2013 and July 25, 2013 in or near Kampala, Uganda.
The March 10 arrest warrant for Gicheru and Bett alleges that Barasa told Witness 536 that Gicheru was in charge but did not want to contact the witness directly because he did not want to be exposed. In her March 10 decision, Judge Trendafilova noted that the prosecution did not attribute any role to Bett in the case involving Witness 536.
On September 17, Witness 536 became the first witness to testify in the trial of Ruto and Sang. Witness 536 is a crime base witness—a witness who primarily provides details about the criminal acts themselves, rather than the accused’s involvement—and is also registered as one of the victims. She is a survivor of the January 1, 2008 burning of a church in Kiambaa, in Eldoret town. That church burning is one of the most horrific acts committed during the violence that followed the December 2007 elections and is a subject of the trial of Ruto and Sang. Witness 536 testified in The Hague about what she underwent that day and what she saw.
Attempts were made to expose her identity online on her first day of testimony even though she was testifying under the pseudonym Witness 536, was not visible to the public, and whenever her testimony touched on details that could identify her, such sessions were closed to the public. Trial Chamber V(a)’s Presiding Judge Chile Eboe-Osuji issued a “special reminder,” warning the public against anyone trying to expose the identity of a protected witness. Still, on her second day of testimony, further attempts were made to expose her identity. This led to the interruption of her testimony, but the next day she informed the court she was ready to continue her testimony.
“It is indeed an exemplary act of courage on the part of this witness that she wants to continue with her testimony undeterred. It shows that the spirit of justice marches on in this case. Such acts of courage on the part of this witness are strongly encouraged on the part of every witness in this case, either for the Prosecution or for the Defense. That is the only way that we can hope to get at the truth in this case,” said Judge Eboe-Osuji while announcing the chamber’s decision to close to the public the rest of the testimony of Witness 536.
The next and final part of this series offers details about Witness 613, Witness 800, Witness 495, and Witness 516.