Ugandan peace negotiator Dr David Matsanga/ FILE
Matsanga’s application, dated May 28, was filed to the Appeals Chamber and has already been received by the ICC’s registry, sources said.
In the application, Matsanga argues that his application is in pursuant to Article 42 (8) of the Rome Statute of the ICC over investigations the war crimes court has been carrying out on him since April 12 this year.
The article under which Matsanga is filing his application states that “any question as to the disqualification of the Prosecutor or his deputy shall be decided by the Appeals Chamber.”
“The applicant further seeks orders restraining the Prosecutor from conducting further interviews/investigations against the Applicant on complaints submitted by the Applicant to the President of the ICC and Appeals judges against the Prosecutor for withholding evidence from the pre trial judges at the ICC in the Kenya case, in particular, Case No. 2 also published on his website, and from making any adverse decisions against him on the basis of the information submitted during the interview/investigation,” the application filed by Matsanga’s lawyer Charles A. Taku states in part.
Matsanga was interrogated by ICC detectives from the Prosecutor’s office who traveled to Kenya’s capital Nairobi between April 12 and 13 to question him over articles and a video posted on his website about Witness No 4 James Maina Kabutu’s recanted evidence in Case 2 against four Kenyans.
They include Deputy Prime Minister Uhuru Kenyatta, former Head of the Civil Service Francis Muthaura, Eldoret North MP William Ruto and Radio Journalist Joshua arap Sang.
“The applicant believes or has a reasonable basis to be believed that the prosecutor has not and will not exercise the independence required of his office in conducting this interview/investigation or in making fair decisions concerning the matters under investigation against him,” Matsanga argues in the 15-page application which includes annexes marked as confidential.
He said he believes the prosecutor had relied on intermediaries in his investigation on him.
“The applicant has reasonable grounds to believe that evidence submitted by him (Matsanga) during the interview/investigation establishes that the Prosecutor relied on notable intermediaries/political activists, Professor Makau Mutua and Maina Kiai,” the application states.
Matsanga further argues in his application that the two individuals had worked closely with the ICC prosecutor in his investigation in Kenya, hence cannot be independent in his work.
“The applicant believes that the nature of this relationship is central to his complaint and published articles critical of the Prosecutor and the subject of his interview/investigation,” Matsanga said.
This relationship, he says, substantially compromises the Prosecutor’s independence to conduct an impartial and credible interview/investigation consistent with the threshold required by the Statute of the ICC.
“The Applicant further believes Professor (Makau) Mutua and (Maina) Kiai have interfered with the process, which is the subject of the interview/investigation against him,” he said in the application to the ICC.
Two weeks ago, the Kenyan Criminal Investigations Department (CID) wrote to the Attorney General urging him to initiate an investigation through the Prosecutor’s office, in an attempt to establish the identity of Witness Number 4 who was filmed retracting his evidence.
The details were being sought in a probe targeting Mutua who is accused of harassing anti-ICC activist David Matsanga.
Matsanga has accused Mutua of harassment in articles published in the Sunday Nation in March 2012.
In the articles, Mutua had complained that there was interference with ICC witnesses and argued that Witness 4 was coerced to retract his evidence.
The CID now wants to know what role Mutua plays in the ICC, after claiming that in 2010, he trained ICC prosecutors involved in the Kenya case.
“Before we continue with our investigations, we would wish to have it confirmed that indeed the person named James Kabutu Maina is a witness of the ICC in the current proceedings against four Kenyan suspects,” Kenya’s CID director Ndegwa Muhoro states, in a letter to the AG dated May 2.
“In this regard, we are requesting your office to facilitate an enquiry directed at the ICC prosecution concerning this matter. Our investigation can only be conclusive if we have this confirmation,” the letter that is also copied to Internal Security Minister Professor George Saitoti, Director of Public Prosecutions Keriako Tobiko and Commissioner of Police Mathew Iteere reads.
The CID has also asked the AG to initiate an investigation on Mutua’s involvement with the ICC, particularly if he had been hired by the war crimes court to train investigators handling the Kenyan cases.
The CID director states in his letter that he has information to the effect that Mutua “was instrumental in training ICC prosecution investigators on the Kenyan case in or around March 2010.”
“We also wish to request you to facilitate an enquiry directed at the Office of the Prosecutor of the ICC regarding any official assignment which that office may have given to Prof Makau generally or in relation to James Kabutu Maina, in the event Mr Kabutu is indeed a prosecution witness at the ICC,” Muhoro wrote.
Muhoro states in his letter that his department is investigating if Matsanga or Mutua had in any way interfered with an ICC witness or witnesses in their publications.
The allegation was first raised in Mutua’s publications – one of them titled ‘Did key Ocampo witness recant his testimony?’ which was published in the Sunday Nation of March 11, 2012 and the second one titled ‘How they tampered with Ocampo Witness’ published in the Sunday Nation of March 18, 2012.
In his first article, Mutua stated that Kabutu was ICC prosecution witness 4 currently in protective custody in USA and that the he had travelled to Kenya from Swaziland on a UN Diplomatic passport under the name Peter Karanja so as to testify before the Waki Commission.
He went on to state that Kabutu had lied on oath either to the Waki Commission and the ICC or lied on oath in his deposition.
In the second article, Mutua said Kabutu had recanted his testimony before CIPEV under duress.
He accused two officials of the then Kenya National Commission on Human Rights of bribing and threatening Kabutu to elicit a recantation and claimed there were what he termed as “dark forces out to scuttle the Hague trials of the Ocampo four.”
The CID concludes that “from both articles, it is apparent that Mutua has either been involved with Kabutu from early 2008 to present or is at least privy to matters concerning him.”
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