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Some witnesses have withdrawn from the case even causing the adjournment of the case and it now seems to be a common affair.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@example.com)