There was no probe, admits ICC prosecutor

By MWANIKI MUNUHE

The Hague: The prosecution has for the first time admitted witness testimony was not verified, a move that the defence in the trial of Deputy President William Ruto hopes would bolster their case that prosecutors did shoddy investigations. 

And the International Criminal Court announced that a new judge — Geoffrey A. Henderson from Trinidad and Tobago — would replace Nigerian Chile Eboe-Osuji on the bench trying President Uhuru Kenyatta.

In an embarrassing admission, the prosecutors told the court the account that the 10th prosecution witness provided to the court could not be verified.

Prosecution lawyer Anton Steynberg said the prosecution did not, for instance, investigate the alleged killing of a police officer that witness 128 on Wednesday testified to have witnessed.

Steynberg responded that the prosecution relied on database and media reports on the alleged killing of the policeman in Nandi Hills, to a question by Ruto’s lawyer David Hooper whether or not the prosecutors investigated the shooting.

The damning admission will embolden defence lawyers who have claimed that the cases against Uhuru, Ruto and journalist Joshua arap Sang are fabricated.

Defence lawyers have accused the prosecution of failure to conduct thorough investigations and instead relying on false testimony gathered by intermediaries such as human rights activists and from secondary sources of information, including reports.

The revelation that the prosecution at the ICC relied on a witness whose testimony they did not investigate is critical in determining the credibility of the testimony.

Said Steynberg: “I can confirm I didn’t investigate the incident to any extent bearing in mind absence of any identity of the deceased and exact date of the incident. The prosecution searched database materials and press reports. We were not able to find reports that matched the incident of the shooting of the OCS,” said Steynberg.

On Wednesday, witness 128 told the court he witnessed the killing of the said officer.

“When we reached Nandi Hills town, there was a huge crowd. I thought we would go to the DC’s office but we didn’t get that far. The Nandi Hills police boss came, but before he spoke, someone came out from the other side and he shot an arrow at him,” the witness said.

He went on to say: “The policeman fell down…They had killed the head of police…behind me there were people going into the shops. There were few Kalenjin policemen who showed them the Kikuyu stores where people started looting. Kalenjin police officers helped the public break into the shops. On the road my friend telephoned me that a petrol station had been blown up,” he said.

Steynberg argued that other prosecution witnesses had substantiated events of looting.

“There were reports corroborating looting in Nandi Hills by other witnesses of prosecution…Prosecution did not go as far as directing formal request to Kenyan government for official records as it was not determined to be critical piece of incidence,” he said

When Hooper sought to know whether the witness knew the area District Commissioner, the witness told the court he could not remember the name of the DC adding that he equally did not know whether or not ‘Muriuki’ is a Kikuyu name.

“It’s not easy to know the tribe of DCs, we only know them as either men or women unless you are very close to them and I never had a chance to be that close to her,” said the witness

“Muriuki is a Kikuyu name?” posed Hooper. “I can’t tell your honour,” responded the witness.

Hooper equally sought to establish the witness’s knowledge of Kenya’s political developments, especially during the 2007 presidential elections.

“Do you know whether Musalia Mudavadi was Raila Odinga’s running mate or number two during the 2007 elections?” asked Hooper. “Siwezi kujua (I can’t tell),” the witness responded.

Then Hooper went on to say, “Do you agree you were ill-informed about politics in 2007?” “My level and political involvement was too low, I just participated in the voting exercise at the polling station,” he said.

Yesterday, the ICC presidency announced that the Trial Chamber V (b) that will hear the case against President Kenyatta had been reconstituted at the request of Judge Eboe-Osuji.

Judge Henderson takes over from February 1. Trial Chamber V(b) will hence be composed of Judge Kuniko Ozaki, Judge Robert Fremr and Judge Henderson.

The court convenes on February 5 for a status conference whose agenda includes the application by the prosecution for more time to conduct further investigations to build the case against the president.

Henderson was elected during the 12th session of the Assembly of States Parties to the Rome Statute (ASP) in November 2013 for a term that will run until March 10, 2021.

He was sworn in on December 12, at a ceremony held at the seat of the Court in The Hague, the Netherlands.