Prosecutors are preparing for the trial of Kenya’s new president, Uhuru Kenyatta and his deputy, William Ruto, who are both charged with orchestrating the political and ethnic violence that erupted in the aftermath of Kenya’s disputed General Election in December 2007.
A third defendant, journalist Joshua arap Sang, also faces trial.
Despite being on opposite sides in a conflict that ended in early 2008, Kenyatta and Ruto formed a team that won the presidential election in March.
In a written submission on May 10, ICC Prosecutor Fatou Bensouda informed judges of “reports received from prosecution witnesses that they have been targeted by (Kenyan government) officials seeking to influence their testimony”.
“Some public officials in Kenya have fostered an anti-ICC climate in the country, which has had a chilling effect on the willingness of potential witnesses and partners to cooperate with the OTP (Office of the Prosecutor),” Bensouda added.
The prosecutor had previously informed judges that there had been an “unprecedented level of witness interference” in her office’s investigations in Kenya.
Following a succession of revelations about witnesses who are afraid to testify against Kenya’s new leaders, international justice experts say it is vital for prosecutors to get to the bottom of the matter in order to safeguard the credibility of the Kenyan cases, as well as of others on its books.
Under ICC rules, the prosecutor can bring criminal charges against anyone suspected of interfering with the court’s proceedings.
“It makes sense for the OTP to be investigating the sources of that (fear), to make sure if it is specific individuals or just a change in the political scene,” David Kaye, a law professor at the University of California, told IWPR.
Kaye added that if individuals are suspected of harassing witnesses, it is important for the court to send a strong message that such actions will not be tolerated.
“I think bringing these cases could have a significant benefit for (the prosecution),” Kaye said, adding that this would send out a message that “they know that it is difficult to testify, but it lets witnesses know that they have got their backs”.
“This would be a message that would also be sent to other cases,” he added.
Interference in ICC investigations has already forced the prosecutor to drop charges against another defendant. On March 9, Bensouda abandoned efforts to prosecute the former head of Kenya’s civil service, Francis Muthaura, after a witness admitted being bribed and lying to the court.
“The Muthaura case has presented serious investigative challenges, including a limited pool of potential witnesses, several of whom have been killed or died since the 2007-2008 post-election violence in Kenya, and others who are unwilling to testify or provide evidence to the prosecution,” Bensouda said when explaining her decision to drop the case.
Kenyan media have quoted lawyers in Nairobi as saying some of their clients who were due to testify against the suspects have withdrawn their evidence because of fears for their own safety and that of their families.