By Edward Hansen
International Criminal Court prosecutor Fatou Bensouda’s office and the Victims and Witness Unit (VWU) cannot escape blame for the challenges the court has had with witnesses in the Kenyan post-election violence cases, according to legal experts.
Bensouda has, on a number of occasions, heaped blame on the Kenyan government for failing to fulfil its obligations under the Rome Statute, and for obstructing her investigations against President Uhuru Kenyatta and his deputy William Ruto.
The prosecutor withdrew charges against President Kenyatta on December 5 because of insufficient evidence as a result of “concerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnesses.”
The prosecution’s pre-trial brief against President Kenyatta released on January 19 enumerated sustained efforts by agents of President Kenyatta as well as State officials to enlist the witnesses to identify their colleagues and also change their testimonies.
President Kenyatta’s alleged intermediaries “attempted to enlist them (Witnesses 11, 12 and 152) to identify Mungiki witnesses who would be willing to “say whatever they [the intermediaries] want” about Mr Kenyatta’s involvement in the PEV.”
“The intermediaries told witnesses 11 and 12 that funds had been “set aside to buy” witnesses, and instructed them to “look for these people. We buy them”. The intermediaries stated that individuals who “volunteered to defend Uhuru, to say Uhuru… did not use Mungiki, will be paid a large amount of money,” the pre-trial brief states.
Cash-for-testimony hirelings
The intermediaries are also said to have coached the witnesses on what they should tell President Kenyatta’s UK lawyers Steven Kay and Gillian Higgins. According to the prosecution, the witnesses were required to tell the lawyers that “Uhuru was not involved in any way of maybe funding those people who go and fight . . . he did not use Mungiki at all.”
Alleged recorded phone calls identify one of the intermediaries as former Embakasi MP Ferdinand Waititu who “in a series of controlled telephone conversations recorded by the prosecution with the witness’ consent, … told Witness 12 that he wanted to meet with him to discuss assisting Kenyatta to ‘solve this fight’ and the ‘lump of money to be given’.”
Ugandan activist David Matsanga, about whom Bensouda has asked The Hague court to be declared a vexatious litigant, has also been openly boasting of revealing the identity of a protected prosecution witness in the Kenyatta case, Maina Kabutu (Witness 4). Matsanga, who appears to have the ears of the Kenyatta State House, claimed to have met Kabutu in Texas, USA, and convinced him to recant his testimony.
In the Ruto and Sang case, former journalist Walter Barasa is fighting a prosecution request that Kenya surrenders him to the ICC to stand charges of witness tampering. Bensouda alleges that Barasa, a former prosecution intermediary, attempted to bribe three prosecution witnesses P-0256, P-0536 and P-0336. The disappearance of Meshack Yebei, a potential ICC witness also remains mystery.
But can the prosecution and the VWU escape the responsibility for the challenges the ICC has been having with witnesses in the Kenyan cases?
For Dr Mark Ellis, the Executive Director of the International Bar Association (IBA), the responsibility must be shared between the Kenyan government and the ICC’s witness protection mechanisms.
“The main culprit in this saga has been the Office of The Prosecutor (OTP) and its failure to admit that witnesses were being bribed to give false evidence against government officials, and receiving ‘upkeep money’, rent allowances, and promises of relocation outside of Kenya for their false testimony,” Ellis said in an interview.
Despite clear evidence of significant tampering with witnesses, the OTP continued its quest to use these same witnesses in pursuant of its case against Kenyatta, he adds.
“The apparent lack of effective protection has led to fears for the safety of witnesses being questioned during the prosecution’s investigation. The present political environment in Kenya is reportedly such that even to be suspected as an ICC witness will often lead to living in fear of harassment and/or death,” he says.
Witness protection is crucial to fair trial, and IBA recognises as much. The ICC cannot deliver justice to the victims unless all witnesses are protected.
The challenges with the Kenyan cases regarding witnesses are not new as every international, ad hoc and domestic war crimes court has faced similar ones. That was the case in both the Bosnia and Serbia situation when the Serbian government established the Serbian War Crimes Court. In Libya there have been rampant threats against the Gadaffi regime supporters. Similarly, the prosecution’s case against Kosovo’s former Prime Minister Ramush Haradinaj at the International Criminal Tribunal for the former Yugoslavia (ICTY) was considerably weakened because witnesses were intimidated.
But echoing Gerald Shur, the founder of the US Witness Protection Programme, also known as WITSEC, Ellis also believes that “there’s got to be a way to get witnesses to testify against the mob.”
Need for reform
“The Kenyatta case, in particular, shows an urgent need for significant reforms in ICC’s approach to witness protection and testimony. The case sheds light on both prosecutorial misconduct and the failure of a State Party to fully cooperate with the court,” he says.
Shur came up with rules for witness protection that are fairly simple: “have no contact with anyone in your former community; don’t write to them; don’t call them because of caller ID; don’t write to them where you can have a postmark or return address on it; yare now a new person in a new community, that’s where your life is,” Shur had said in an interview in 2011.
Whether ICC implemented Shur’s witness protection doctrine to the letter may never be known to the public. What is clear though is that a number of the ICC witnesses kept contacts with their families, friends and intermediaries, a situation that exposed them to the mobs.
Reports of some witnesses openly boasting to their friends and roaming the villages with their subsistence allowances that the ICC gives have also been rife.
This is not to mention some of the third party countries that the ICC set up safe houses for witnesses. Some of the countries were in Africa and had close diplomatic ties to Nairobi, giving the agents ease to access of witnesses.
IBA, which boasts a membership of over 200 bar associations and law societies worldwide, insists that additional blame should be directed at the Kenyan government for failing to do more to support and protect witnesses.
“Though Kenya enacted a Witness Protection Act in 2006, it wasn’t enough to allay witnesses’ fear of reprisals. The ICC prosecutor urged Kenya’s government to take genuine steps to protect witnesses. And although Parliament passed a Bill in April 2010 amending the 2006 Witness Protection Act, the new legislation was still not robust nor sufficient enough to counter the problems surrounding witness protection,” says Ellis.
The IBA had already spoken out on improving protection for witnesses when, in July 2013, its Hague office issued a report “Witnesses before the International Criminal Court” – which documented the challenges facing the ICC in protecting, supporting and ensuring the rights of witnesses before that court.
The report documented significant deficiencies in ICC’s witness protection, including failure in “obtaining state cooperation, supporting witnesses’ practical and psychosocial needs, organising logistics, securing their safe passage to The Hague, and protecting persons from potential threats or interference during investigations and trials.”
Additional recommendations for change would include expanding the level of legal and technical expertise within the ICC’s Victims and Witnesses Unit; increasing the overall financial support for the court’s witness protection efforts; and securing much greater assistance from State and Non-State Parties to support witnesses, offers Ellis.
The Victims and Witness Unit (VWU) is charged with the protection of witness, both for the prosecution and the defence. Article 43(6) of the Rome Statute empowers the ICC Registrar to set up the VWU while Article 68(1) is an undertaking by the States Parties to the Rome Statute to “protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”
The States Parties meeting in New York, USA from December 8 to 17, 2014 passed an aggregate budget of €7,384,800 (Sh770,890,000) to the Security and Safety Section under which the VWU falls, a modest decrease of 1.2 per cent of the amount requested.
Furthermore, there is need to strengthen ICC’s enforcement capabilities for breaches by or against witnesses; seeking greater collaboration from relevant State Parties to strengthen their own domestic witness protection programmes, including establishing effective independent witness protection units; and relying less on live witnesses.