NAIROBI, Kenya Jun 12 – Lawyers for former Head of the Civil Service Francis Muthaura now want the ICC Prosecution to explain the role of university scholar professor Makau Mutua in its investigations on the Kenyan cases.
During Tuesday’s status conference, one of Muthaura’s lawyers Karim Khan asked the chamber to order the prosecution to disclose Mutua’s role.
“We also ask the bench to order the prosecution to disclose the role of this individual, Makau Mutua with the office of the prosecution and to detail any and all contact they have had with this person,” Khan said and expressed fears the prosecution may have been dealing with intermediaries in discharging its functions.
“Your honours, I would like to be answered by the prosecution and answer whether or not he (Mutua) is or is not an intermediary and otherwise the nature of the relationship, and your honours I would also like to know whether or not the OTP has heard in relation to his articles because he is a weekly columnist or even more than that adverse notice any of the publications that he has put online and which has been published in the newspapers in Kenya because that will assist the defence to know more about this individual who we say should be approached with caution and for reasons which I don’t need to enter at the moment we have misgivings regarding his role,” Khan said.
One of the judges Christine van den Wyngaert said the chamber was duty bound to protect the right of the defence as well as the witnesses as stipulated in the Rome statute.
“This has nothing to do with what the newspapers say,” Wyngaert said and asked the lawyer to provide facts and details about the matter in writing.
The bench also asked the lawyer to address the matter to the prosecution in writing.
“I don’t think the status conference which is to resolve basically logistical issues for the trial, is a proper forum to deal with those kind of issues,” the judge said.
A member of the prosecution Adesola Adeboyejo said they will respond if the defence puts the submissions in writing. “We will respond, based on the timelines your honour will give to us,” she said.
Khan has pledged to make the submissions in writing, but expressed concerns that the prosecution has a tendency of failing to respond to issues raised even when it is put in writing.
Muthaura’s lead lawyer also raised concerns over what he termed “the use of intermediaries to contact defence witnesses.”
“It is in the press in Kenya that one individual David Matsanga is under investigations… I won’t touch on that, but a very worrying trend and a very troubling trend in this case is about one individual Makau Mutua. This individual we say appears a friend to the prosecution,” Khan said.
“And we say for good reason, if one looks at the Buffalo university website of March 2010, and I quote, in mid March; did Mutua travel to the Hague, the Netherlands to train investigators of the ICC who were seeking evidence and it goes on,” Khan explained.
Based on the information on the Buffalo university website, Khan said, Mutua had likely trained ICC investigators.
“So this individual has trained it seems members of the OTP, December 16, 2011 this individual was to take part in a town hall style forum with the prosecutor in New York, this is another press report,” he said.
“This individual in his newspaper articles dated March 9, 2011, and March 17, 2012 talks about this witness to the extent of even giving a purported pseudo name when he travelled, it said on a UN passport,” Muthaura’s lawyer said.
The defence team of the former head of the civil service told the bench it was extremely worried that individuals it described as intermediaries are most likely in possession of information the defence does not have, which is a threat to the ICC case and against the Rome Statute.
“He (Mutua) is privy to information that we don’t have,” Khan said, and added “We also received information that the prosecutor was using intermediaries to contact our defence witness, and we wrote to the prosecution to ask about it, it is unbelievable.”
Last month, the Criminal Investigations Department Director Ndegwa Muhoro wrote to Attorney General Githu Muigai asking him to institute an investigation from the OTP on Mutua’s involvement in witness interference and if he had any involvement with the OTP in The Hague.
The CID has indicated they are investigating if Mutua was involved in witness interference through articles he published in a local daily earlier this year.