, NAIROBI, Kenya, Dec 5 – The International Criminal Court (ICC) has rejected President Uhuru Kenyatta’s bid to stop his crimes against humanity trial, due to alleged abuse of process by The Office of The Prosecutor (OTP).
Trial Chamber V(b) judges observed that supporting materials which the defence presented to argue that witness number 118 and the prosecution conspired to fix Kenyatta were insufficient to grant the request.
“The supporting materials provided by the defence, even if they are accepted as true, do not, as far as the chamber is now able to see, reveal a conspiracy of the scale alleged in the application. None of the material submitted provides direct support for such allegations.” the judges ruled.
According to them, the defence of Kenyatta relied on what they “heard second-hand” and also based on inferences of association of the witness.
But the judges said the allegations by the defence were serious and will be exploited further in the course of Kenyatta’s trial during cross-examination of the witnesses.
The chamber said if what the defence was alleging is true, then it will be a violation which will lead to the rejection of testimonies in question.
“The chamber emphasises that it is entirely unacceptable for any person to inappropriately manipulate the testimony of the court’s witnesses. Such behaviour will render the affected testimony unreliable or inadmissible. Further, corruptly influencing the court’s witnesses constitutes an offence against the administration of justice and is punishable under Article 70 (1) (c) of the Statute.79,” the judges warned.
The judges observed that the prosecution did not depict that witness 118 connected it with 10 other prosecution witnesses as alleged by the defence but said there was need to establish if that was done indecently.
“The chamber notes that the prosecution does not contest that witness 118 and the intermediary connected the prosecution with at least 10 of its trial witnesses. The issue to be resolved is whether witness 118 and the intermediary improperly influenced the prosecution’s witnesses; if so, to what extent such influence should be considered when ruling upon a request to stay the proceedings,” the judges ruled.
The chamber further said the defence had submitted selective snippets of witnesses 11 and 12 to prove that they had accepted to give evidence in exchange for money.
Whereas they noted that it could reduce the credibility of the witnesses, the judges said there was no strong supporting evidence given by the defence to warrant the chamber to stay the proceedings.
“The chamber considers that even if the defence allegations against witness 12 are accepted, they lend very little support for a permanent stay of the proceedings. The material involves issues which may go to the credibility of the specific witness(es) and would more appropriately be raised at trial and assessed by the chamber when considering the evidence as a whole and, in particular, the weight to be attributed to their testimony to hold its argument,” the judges opined.
They at the same time admonished the defence for making the application public which they said could affect the security of the witnesses in question.
“The defence acted with serious disregard for the witnesses’ safety. Moreover, such conduct, which fails to prioritise the security and well-being of witnesses, would appear to be self-evidently unconducive to securing their continuing cooperation.”
The judges also noted that a stay of proceedings is granted as a last resort and when there is no a possibility to address concerns at the trial stage or when there is solid prove of lack of fair trial.
In his concurring opinion, Trial Chamber Judge Chile Eboe-Osuji differed with the other two judges who said it was inappropriate to dismiss allegations made by Kenyatta’s defence that the prosecution could have acted in bad faith.
“It is for the foregoing reasons that I approach with caution the proposition that it is not necessary to find that the prosecution acted in bad faith in considering applications for stay of proceedings at the ICC. And, I am less inclined to accept any proposition to the effect that a Trial Chamber may order a stay of proceedings on account of the impugned conducts of third parties that were not procured or condoned by the Prosecution or the victims,” Eboe-Osuji asserted.
On October 10, Kenyatta’s defence sent an application to the Trial Chamber V(b) seeking a permanent stay of proceedings over alleged abuse of process.
The team indicated that witness 118 and prosecution were conspiring to fabricate evidence against Kenyatta. It further argued that witnesses 12, 428, 429, 430 and 505 were also involved in the scheme.