Halt ICC trials, conduct inquiry on prosecutor

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DANN MWANGI

After a long period, the Kenyan cases before the International Criminal Court have finally begun.

This is despite the fact that the African Union has now passed two resolutions against the ICC prosecuting the current cases and also other individual African states such as Tanzania, Burundi, Rwanda, Uganda and Eritrea submitting observations to the ICC that both the President and Deputy President should be allowed to skip the trials.

These trials will make or break the prosecutorial arm of the court and by extension the court as the thorny issue of how the OTP conducts its investigation has arisen again.

Some witnesses have withdrawn from the case even causing the adjournment of the case and it now seems to be a common affair. Amongst the reasons that they are withdrawing, some are stating that they were coached to be witnesses, paid and also that the ICC has not offered them adequate witness protection.

This raises fundamental question on whether the OTP handled its investigations properly or if it relied on third parties to conduct its investigation. For a fact, the feeling that ICC conducted shoddy investigation in Kenya does not augur well for the OTP as this informs one of the reasons why both the Kenyan National Assembly and the Senate are seeking for withdrawal of Kenya from the Rome Statute of the ICC.

With this in mind, the ICC Presidency and the Presiding Judge in this case must ask themselves a critical question; does the Kenyan case continue in its current absurd form or halt it first and conduct an independent inquiry to ascertain how the OTP conducted its investigation? As a person who has been involved in this case, I would strongly advise the court to halt the case and conduct a forensic audit of this case as the issue of witnesses’ withdrawal is hurting the case and above all further denting the credibility of the court.

With experience of the matter of the ICC probe on David Matsanga last year over accusations of witness tampering, I believe that it’s only an independent inquiry that will help bring the truth about how OTP procured witnesses. In this case, which I was among the counsels who represented Matsanga, the OTP had accused him of obstructing the administration of justice as per article 70 of the Rome Statute to the ICC.

This was because he had posted in his website a video of person who was regarded as witness number four in the case facing President Uhuru. However, the ICC team, led by the Head of Investigations, Alex Whiting, was unable to prove that he had tampered with the witness and even after Matsanga brought an application on this matter before the ICC Trial chamber, the judges admonished the OTP and specifically the former prosecutor for how they had handled his matter.

Without such as independent inquiry on the witness issue, there is a likelihood that the trials will stagnate or collapse as there will be no witnesses. Further, this inquiry will help address the issue as to whether the OTP conducted proper investigations in Kenya or if its prosecutions are politically motivated.

The inquiry will also help to establish whether there are people in Kenya or outside who are tampering with witnesses too. In fact, the withdrawal of witnesses raises fundamental issues as to why the OTP has not sought for prosecution of witnesses who have withdrawn and yet the ICC statute is very clear on this matter.

Article 70 of the Rome statute to the ICC elaborates in details how a witness who gives false testimony or evidence is to be treated but the OTP remains reluctant to prosecute such witnesses. Many questions remain unanswered on this matter. Is it because the OTP was aware that the witnesses who have withdrawn had been induced to testify? Is it because they fear withdrawal of the remaining witnesses if those who have withdrawn are prosecuted?

Therefore, the prosecutor should support this independent inquiry as she risks facing investigation like the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, Carl Del Ponte and his cohorts, Hildegard Ürtz-Retzlaff and Daniel Saxon, after complaints from witnesses that they had been harassed, paid, mistreated and their evidence tampered with.

(Mwangi is a lawyer [email protected])

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  • Bensouda

    ICC is not Kenya where we conduct inquiries into everything and do nothing. Inquiry into the brutal killing of Robert Ouko. Where did that lead? Inquiry in the death of 50 police officers slaughtered in Baragoi? Where did that lead? Inquiry into the killing of 200 people in Tana River county? Zero. Inquiry into the circus of the Artur brothers. Nothing. We will know about the ICC investigations as the trial goes on but can you also tell us how Kenya investigations into the PEV murders of 1,300 Kenyans have gone. How many people have we convicted? How about zero. Now we are rightly mad about Al Shabaab killing over 70 Kenyans. Where is the outrage about the terrorists of PEV who killed 20 times more Kenyans. Hypocicy will us all.

  • marloow

    No…continue with the cases…AND conduct an inquiry..
    Your thinking harkens to the days of Kenyatta Pere and Moi when cases targeting the rich and powerful were arbitrarily stopped or suspended by orders from “above”…and you are a “lawyer”….

  • Qwani

    There is no way the OTP will prosecute witnesses who lie. The ICC will not conduct any sort of investigations whatsoever into the performance of the OTP despite the glaring inefficiencies and ineptitude. You can comfortably take that to the bank.

    • Kenya Yetu

      It is amazing that with all the claims about “OTP ineffiencies and ineptitude” the accused duo and their supporters are terrified to death about the trial and want it stopped immediately. What exactly are they afraid of? Last week when a Kiambaa terrorism survivor came to testify Uhuruto supporters in the social media wanted her stoned to death and she had to be saved by the judges from the hate mongers and evil people who don’t want the trial to go on and would rather have her burnt to death in that tomb of a church. Very shameful.

      • Qwani

        You have got it all wrong. In case you aren’t aware, the statements on inefficiencies on the part of the OTP has come from the ICC judges themselves and not from UhuRuto supporters. As for the rest of your comment, there is a lot of exaggeration there which is well below my dignity to find worthy in responding to.

        • Kenya yetu

          The trial resumes on Wednesday next week infront of the ICC judges in Trial Chamber V(a). That is as it should be. What is the problem? ICC cases are very complex. Read the Lubanga case and you will get a glimpse of what awaits Uhuruto. Monkey business hardly works there. You will find out. Certainly. Poa. If Uhuru and Ruto are innocent they will walk free. If they are guilty as charged they will rot in jail or run into caves as international criminal fugitives. Same as Osama bin Laden. That is what it is. Put simply.

      • Kwessi Pratt

        Unfortunately, thats the reality of things today. Of course, its clearly coming out apparent “innocent” people are afraid of justice. Their supporters are even prepared to incite hatred and violence that their masters are ironically charged with! The illogic in which these grave charges are being met with is unbelievable. Innocent people Kenya Yetu dont go about furiously kicking everything in their way to impose that purported innocence. They patiently wait for their day in court to ashame accusers. You dont even incite your neighbors to take action against the court in which you stand accused. You then move to toothless continental bodies, with several possible ICC candidates, to incite a pull out from that same same court. These are NOT acts of an innocent person. In a normal court process, you easily get cited for contempt of court when you engage in these hostile acts. Innocence is displayed by obvious calmness and ability to embrace thats right.

    • marloow

      Er…consequences….
      accept and move on…some of us have….

  • chris

    Dann Mwangi, consequences setting in?! Accept And Move on… 🙂

  • arthur

    Good piece!

  • Mohameed

    Very True….results of copy pasting investigations are being unmasked by Khan.

  • indsn

    Some of the important issues that seem to have been somehow downplayed or neglected are:
    Statements by ODM prior to the election date in 2007
    Actions by ODM activists in the tally centre – notably in attempting to leave out crucial votes for Central Province constituencies
    The delay in returning results from 5 big voter Central Province constituencies
    The voter tally without the five
    The actual numbers in the big 5
    The mathematical impact on the tally with the results of the 6 included
    The nature of alterations on the results from the big 5 when finally delivered to the tally centre (adding of 20,000 to each of the results to justify attempted rigging of final results)
    The exact wording of ODM leader call for mass action and the call for the swearing in of “the peoples’ president at Uhuru park” – what was intention and anticipated impact?
    The actions of Kibera youths in response to the call for mass action
    The reasons for and the nature of Mungiki involvement
    The Mungiki declaration and impact of “kill one Kikuyu, we kill three” – this probably was the one most important factor that stopped the violence
    The fact that it was not possible to expect the Kikuyu’s to witness endless mascres without retaliatory action
    It did not require ‘organising or planning’ for an already existing Mungiki group of radical youths to join the fray
    Before elections government was fighting Mungiki
    For the 2013 elections Mungiki formed a political party and joinrd a coalition of ‘choice’ with public pronouncements
    the previous political track record of the ODM leader including role in 1982 attempted coup
    The Waki commission conduct and reporting under the office of the PM
    The entry into Kenya of ICC via office of PM
    The ICC witnesses and the Waki report
    The ICC charges of ‘ODM planned violence’ in advance of elections – who planned for whose benefit?
    Allegations of imposters among witnesses and possible third party involvement in witness procurement
    Proper attention to the above would help clear the air and advance the cause of justice rather than appear to conduct a prosecution for the sake of proving a point or as an act of political convenience.

  • Sniper

    the notorious Waki list must be reopened. moreno ocampo did not prosecute Raila, Nyongo and Kibaki

    • Kwessi Pratt

      President Uhuru Kenyatta should have by now charged them with crimes against humanity, give new different evidence largely incriminating them. As head of state he has access to all that happened. But for strange reasons, he wants to be left alone without telling those who care, “these are the REAL criminal suspects and are already facing the full force of the law!!!!”

  • Kwessi Pratt

    The fact that witnesses have been withdrawing from ICC cases has nothing to do with the gravity of the charges. But rather mere realization that they are up against powerful lot indeed. Certainly, if witnesses have been withdrawing out of other concerns, then suspects should sit comfortably and go through what would, in the circumstances, be cleansing exercise by ICC. That would even given them moral authority to take on those they seem to believe were truly behind 2007/8 PEV. Thus, mere unsubstantiated charges against OTP wont do the trick. Relying on mercenaries of questinable characters to discredit OTP wont help either. If anything, it will only increase suspicion against suspects!

    Since Kenya installed criminal suspects as leaders, concerted illogical efforts have been employed to let them off the hook. However, that has been done without addressing the core issue of criminal involvement. It seems mere installation to leadership was apparently supposed to cancel charges. Even the fact that one resigned from a ministerial post because of integrity problems, and comically moved up the ladder, is being kept in the dark. And that happened without any clerance of issues that led to resignation. Of course, pattern here quickly forms. That with or without charges things had to be done the Kenyan way, – where impunity runs riot!

    Interesingly, reasons being advanced to drop charges are the same same ones that civil society groups presented before “our now reformed courts” in their failed attempt to bar suspects from running for offices. Obviously, our “much reformed” courts were prevailed upon not to touch the matter. Indeed suspects never saw the obstacles they are now facing. False belief that once elected by the people, criminal liability ceases clouded everything.

    AU is a composition of ruthless blood thirsty individuals. Who are NOT taken seriously by international community. Infact, most of them expect someday have a date with ICC! That alone morally disqualifies them from making any kind of noise at all, .. at all!!!!

  • dingdong

    Mr. Mwangi, the evidence is out, the witnesses did not pull out but were bought and coerced out !, hence her claims were not baseless

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