By Blamuel Njururi – Kenya Confidential Editor-in-Chief, Nairobi – December 9, 2021
ICC witnesses were offered as much as Ksh 5 million to recant their evidence implicating Deputy President William Ruto a the mastermind of 2005-2008 Post Election Violence
The evidence before the Hague-based International Criminal Court (ICC) has established that lawyer Paul Gicheru and associated persons engaged in a concerted effort to identify, locate and contact ICC Prosecution Witnesses and then to corruptly influence them to withdraw as Prosecution Witnesses, recant their evidence, and/or to identify, contact and corruptly influence other Prosecution Witnesses. The evidence establishes that the pattern of witness interferencedescribed below was conducted for the benefit of, and in coordination with, William Samoei Ruto.
According to the ICC latest Brief, in Chapter A, it sets out the Prosecution’s overarching legal submissions. Chapter B provides a narrative and analysis of facts and evidence that proves the confirmed charges, with references to the most important items of evidence supporting these facts, and relevant legal analysis.
The essential elements of the offence of corruptly influencing a witness in contravention of article 70(1)(c) have previously been defined by Trial Chamber VII in the Bemba et al case, and confirmed by the Appeals Chamber.
They were also adopted by Pre-Trial Chamber A (Article 70) in the Decision on the confirmation of charges against Paul Gicheru. According to this precedent, “Article 70(1)(c), first alternative, of the Statute (‘corruptly influencing a witness’) proscribes any conduct that may have (or is expected by the perpetrator to have) an impact or influence on the testimony to be given by a witness.”
In particular: Conduct crime Article 70 (1) (c) of the Statute is a conduct crime and “does not require proof that the conduct had an actual effect on the witness”.
“Article 70(1)(c) of the Statute is to be construed broadly, allowing many different modes of commission to be captured thereunder that are capable of influencing the nature of the witness’s evidence”, including bribery, pressuring, intimidating and threatening witnesses Corruptly.
“The perpetrator’s interference with the ‘witness’, as contemplated under article 70(1)(c) of the Statute, implies that he or she seeks to deter the witness from giving full evidence or seeks in any way to unduly influence the nature of the witness’s testimonial evidence.”
“The use of the word ‘corruptly’ signifies that the relevant conduct is aimed at contaminating the witness’s testimony.”
The Prosecution submits it is axiomatic that, at least in the context of an opposing party’s witness, interference aimed at preventing a witness from testifying at all must also be included in the conduct proscribed.
Kenyans engulfed in post election violence
William Samoei RUTO and Joshua Arap SANG were charged with six counts of crimes against humanity arising out of the post-election violence that followed the 2007 general election in Kenya.
This election saw the Orange Democratic Movement, led by Raila ODINGA and inter alios Ruto, vying for power against the Party of National Unity, led by President Mwai Kibaki and inter alios Uhuru Kenyatta. Support for the rival coalitions was split largely along ethnic lines, with the Kalenjin, who formed the majority of the population in the Rift Valley, supporting the ODM, and in particular Ruto.
The Kikuyu, Kenya’s most populous ethnic group but a minority in the Rift Valley, largely supported the PNU. These political differences heightened existing tensions between the majority Kalenjin population of the Rift Valley and the Kikuyu and other ethnic minorities.
Victory by Kibaki and the PNU in disputed circumstances led to an outbreak of violence across Kenya. This was particularly bloody in the Rift Valley, where Kalenjin Ruto supporters targeted Kikuyu and other ethnic minorities in the area, assaulting, killing, burning houses and looting businesses.
Also targeted were the Kalenjin minority who supported the PNU and were regarded as traitors.
Hostility towards ICC
While the ICC was initially welcomed by the Kenyan authorities, this support soon waned once the identity of the suspects, including Ruto and Kenyatta, became publicly known.
Influential politicians, Kenyan media outlets, and social media campaigns collectively rallied public and political opinion against the Court and its perceived supporters within Kenya.
The result was that the Prosecution met insuperable cooperation challenges that prevented it from accessing potentially valuable sources of objective evidence, such as call data and financial records, and from conducting any investigations requiring coercive state powers, such as phone intercepts or searches.
The same issues also affected the Prosecution’s investigation into instances of witness interference, including offences charged in this case. The cooperation challenges and lack of access to important sources of evidence meant that the Prosecution was significantly limited in its ability to conduct investigations inside Kenya.
However, the Prosecution was able to adapt its investigative strategy in this case to effectively compensate for these difficulties.
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