Who are the Witnesses in the Second Kenya Bribery Case at the ICC? – Part 3

This is the third 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. This part sketches the bribery allegations involving Witness 613, Witness 800, Witness 495, and Witness 516 as well as giving a summary of their testimony in court. Part 1 of the series ccan be read here and part 2 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.

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 draw a sketch of each of the six prosecution witnesses we assume Gicheru and Bett are alleged to have bribed or attempted to bribe.

Witness 613

According to details in the March 10 decision, the prosecution alleges that Witness 613 was approached on seven different occasions between April 29, 2013 and September 2013 to accept a bribe in exchange for her withdrawing as a prosecution witness. The prosecution alleges that during that period Philip Kipkoech Bett and three other unnamed individuals tried to convince Witness 613 to accept the offer. The March 10 decision stated that the prosecution alleged Bett told Witness 613 on two of the occasions he talked to her that Gicheru was paying witnesses to withdraw or received witnesses at his office where they signed affidavits withdrawing as prosecution witnesses. One of the unnamed individuals is alleged to have offered the witness employment in addition to being paid to withdraw. The decision does not state whether any particular monetary amount was discussed with Witness 613. The arrest warrant states these contacts and offers to Witness 613 took place in Eldoret.

Witness 613 gave linkage testimony between June 18, 2013 and June 20, 2013 in The Hague. Parts of her testimony were given in private session. During the public sessions Witness 613 testified about political rallies she attended and what was said at those rallies. She also testified about an assistant to Ruto, Farouk Kibet. Witness 613 described herself as a supporter of the Party of National Unity (PNU). At the time of the 2007 election, Ruto was a senior leader of the Orange Democratic Movement party, the main rival of PNU. During her testimony the defence questioned the amount of hearsay evidence Witness 613 gave. Presiding Judge Chile Eboe-Osuji noted that the testimony of Witness 613 consisted of a lot of hearsay and the chamber would be asking the parties to make submissions on the issue of how much hearsay is permissible.

A summary of the hearings each day Witness 613 testified can be found here and here. Redacted transcripts of the days Witness 613 testified can be found here.

Witness 800

The prosecution alleges that Barasa and Bett contacted the witness on separate occasions and made him offers allegedly acting on behalf of Gicheru, according to the March 10 decision. Barasa allegedly made Witness 800 an unspecified offer on July 21, 2013. Bett allegedly made an offer of between 1.5 million shillings (US $14,200) to 2.5 million shillings (US $23,680) on an unspecified date. The prosecution alleges that Witness 800 signed an affidavit withdrawing as a prosecution witness in the office of Mitei and Company Advocates upon instructions from Gicheru. According to the arrest warrant, all of this took place in Kenya without specifying where in the country these offers and contacts were allegedly made. The prosecution has stated that the witness broke off contact with the ICC in early August 2013.

Fifteen months later Witness 800 testified before Trial Chamber V(a) from November 17 to November 26, 2014. He is an insider witness who testified that Ruto spoke in code about evicting Kikuyus during an October 2005 meeting at a location not disclosed in open court. Witness 800 also described a camp where retired military officers trained Kalenjin youth how to shoot arrows and set houses on fire a month before the December 2007 general elections. The witness was represented by a lawyer during his testimony.

Summaries for each day Witness 800 testified can be found here. Redacted transcripts for the days he testified are not available.

Witness 495

Besides being the subject of the latest arrest warrant issued by Pre-Trial Chamber II, Witness 495 and Witness 516 have also been the subject of two major applications the prosecution has filed during the trial of Ruto and Sang. One was the application seeking Trial Chamber V(a) to compel reluctant witnesses to testify. The second asked the chamber to admit as evidence the statements the two witnesses made to prosecution investigators. The prosecution made the application in part because at the end of the testimony of Witness 495 and Witness 516, their statements to prosecution staff were only admitted into the record for the limited purpose of impeaching the witnesses.

According to the prosecution’s December 5, 2013 application, Witness 495 is an insider witness and the prosecution lost touch with him sometime in September 2013. The application stated that the prosecution was supposed to meet him in September 2013 and help him get a visa so that he could testify in The Hague. However, Witness 495 apparently checked out of a hotel he had been booked in, after which the prosecution claimed it could not reach him. Details of where Witness 495 had been booked in or the date he checked out have been redacted from the December 5, 2013 application. The only other detail available to the public is the fact that the prosecution revealed the identity of Witness 495 to the defence on March 13, 2013.

In the March 10 decision and arrest warrant for Gicheru and Bett, Witness 495 was allegedly contacted by an unnamed person and offered 2.5 million shillings (US $23,680) and employment for him to withdraw as a prosecution witness. He apparently accepted and later met with Gicheru and Bett. The prosecution further alleges that Witness 495 met privately with Gicheru to discuss the terms of the agreement. According to the arrest warrant, these offers and contacts took place in somewhere in Kenya.

About a year later, on September 16, 2014, Witness 495 appeared before Trial Chamber V(a) as one of the witnesses who were compelled to testify. He had a lawyer representing him for the narrow purpose of advising him on any self-incriminating testimony he gave. He testified via video link from an undisclosed location in Nairobi. The chamber approved a partial immunity deal the prosecution gave him so long as he testified truthfully about what he knew of attempts to interfere with prosecution witnesses. In his main testimony, Witness 495 denied making a statement to the prosecution on events before and after the December 2007 polls. He was later declared a hostile witness.

The statement he recorded with prosecution investigators was among the statements Trial Chamber V(a) determined in an August 19 majority decision should be admitted as evidence. The defence is appealing that decision.

Witness 495 testified between September 16, 2014 and September 22, 2014. Summaries of his testimony can be found here. Redacted transcripts of the days he testified are not available.

Witness 516

According to the prosecution’s December 5, 2013 application, the prosecution lost contact with Witness 516 when he failed to attend a scheduled July 6, 2013 meeting and then ceased to communicate with court officials.

Witness 516’s identity was disclosed to the defence on February 18, 2013. His family was relocated in December 2012, although the witness himself did not leave Kenya.

The December 5, 2013 application makes reference to a first payment of 100,000 shillings (US $947). 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 Witness 516’s status as an ICC witness was well known in the Rift Valley and he was being pressured to not cooperate with the court. The prosecution said it never received an affidavit from Witness 516 confirming he had withdrawn as an ICC witness.

In the March 10 decision and arrest warrant for Gicheru and Bett, the prosecution alleges that Witness 516 was contacted in April or May 2013 on the instruction of Gicheru. The witness allegedly then met Gicheru in Eldoret and discussed and agreed on the terms of the witness’ withdrawal. The March 10 decision does not give any details of what was agreed between Gicheru and Witness 516. The prosecution said Bett did not interact with Witness 516.

Fourteen months after failing to meet with the prosecution, Witness 516 appeared before Trial Chamber V(a) on September 22, 2014. He testified via video link from an undisclosed location in Nairobi. He had a lawyer present during his testimony for the limited purpose of advising him when his testimony became self-incriminating. He, like Witness 495, was given a court-approved partial immunity deal so long as he testified truthfully about his knowledge of efforts to interfere with prosecution witnesses. He told the court that he met two men who told him what to tell prosecution staff when they contacted him to testify at the ICC. He also said he chose to testify because he was promised a “good life,” including payments for his children’s education. He was declared a hostile prosecution witness.

The statement he recorded with prosecution investigators was among the statements Trial Chamber V(a) determined in an August 19 majority decision should be admitted as evidence. The defence is appealing that decision.

Witness 516 testified from September 22, 2014 to September 26, 2014. Summaries for each day he testified can be found here. Redacted transcripts for those days are not available.

7 Comments

  1. it’s truth if taken immediately but a mere delay in excusing system antagonize it . The truth is lost when the same system is derailed.The guy looking for justice l.oses it when overplayed. bribed justice is a lost one.I. the case that seek justice is overplayed there you create Parma net confrict

    Reply

  2. the truth shall set them free. Dp and Sang we are together in prayers we trust and believe that justice to all will prevail God bless Kenya.Amen

    Reply

  3. It is absolutely futile debating whether the OTP’S case has faults or not, for the simple reason that their case is over/ended/completed!! The OTP has rested its case, the witnesses have been allowed to give evidence, and have done so! It’s over…

    So, let’s really look at the case as it has been presented!

    1) Has the OTP provided evidence of organisation of the violence, and/or a network?

    2) Have the witnesses shown evidence of both the accused’s influence or input into the violence?

    3) Have the witnesses given reliable evidence? Is the evidence collaborated, factual and undenied?

    4) Is there collaborative evidence showing factual lines of events?

    5) Did the accused work alone or with others?

    Everything else are side shows and irrelevant!!! Which is why I am curious by the judges side remarks on matters outside its jurisdiction. The only interest the courts should have on any ongoing case, should only be addressed towards presentations to the courts, investigations authorised by the courts and the proceedings of the court.

    One should not expect a public trial, that goes on for 7 years and counting, would be void of criticism, bias views and shenanigans, outside its jurisdiction… look at the Oscar Pistorius trial: world wide coverage, views, bias and opinions on investigators, the person, the judges, the prosecutor and trial…. This is inevitable and expected. Why the court would feel bothered by observers and observations escapes one.

    Anything not presented to the courts is not relevant!

    Reply

  4. Kenya gov to stop wasting state money to bid withdrawal of icc case, let justice be found from icc. International court should protect less privileged or else the world will belong to only those wth power, corrupt, criminal etc. Icc save us. A genuine kenyan

    Reply

  5. These comments are overkanjinized. If a guy is innocent, let his words vindicate him. This mongin agen nonsense should cease. We are not all on trial. This is a Rutto-Sang trail. Let them carry their cross, stupid.

    Reply

Post a Comment

Comments are moderated and may not appear immediately.
See our Terms & Conditions and Privacy Policy.