Serious concerns have emerged over protection of key witnesses in the cases pending before the ICC.
The International Criminal Court’s (ICC) chief prosecutor Luis Moreno-Ocampo. Photo by Francois Lenoir/Reuters
Already, The Standard has established, crucial witnesses have raised concerns about being intimidated against giving evidence. Also, it has emerged that forces targeting the witnesses are even engaged in cyber crime through hacking email accounts looking for possible evidence the witnesses may have adduced or communication they may have had with the Office of the Prosecutor.
In what may cause friction between Kenya and ICC over cooperation and the protection of witnesses, the Attorney-General Githu Muigai has swung into action ordering the Criminal Investigation Department to track down the culprits.
The AG has directed top security organs and the Witness Protection Agency (WPA) to urgently investigate the complaints raised.
Threats to witnesses and to individuals cooperating with the ICC became widespread as soon as investigations began in 2010.
Last year, during the confirmation of charges, ICC Victims Representative Sureta Chana accused Kenyan MP Charles Keter of threatening witnesses testifying against the three suspects during a radio station call-in programme.
Mr Keter allegedly claimed to know the identities of two of the witnesses whose testimony was presented during the hearings.
The latest witnesses’ concerns come just a day after the Hague-based Court convicted Congolese warlord Thomas Lubanga of conscripting child soldiers to his militia group. Lubanga, 52, became the first person to be convicted by the ICC in its 10-year history.
Louis Moreno-Ocampo has focused his lenses on the Kenyan case writing a letter to Attorney General over intimidation of witnesses.
In the complaint to the AG, ICC raised concern over the hacking of email accounts of a person of interest to the Office of the Prosecutor.
The protection of witnesses of the 2007/2008 post-poll upheavals remains key to ICC if its chances of nailing the accused are to remain high.
The complaints came only moments after AG asked witnesses and victims of the 2007 and 2008 post-election violence to come forward and testify in the local trials of lesser offenders.
Prof Muigai assured them of safety during investigations. “Dealing with post-election violence investigations and prosecutions has been a challenge. Most witnesses and victims are not willing to come forward to testify,” the AG had said.
In the Lubanga case, credibility of witnesses formed the nucleus around which the case revolved with ICC judges isolating these instances and ordering further investigations.
The same could apply in the case where Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Head of Civil Service Francis Muthaura and radio presenter Joshua arap Sang are accused of crimes against humanity by the Court. Indeed, the four have on several occasions poked holes on Ocampo’s witnesses claiming they were not credible and that they were coached. They claim the ICC prosecutor is basing his case on coached witnesses, with fabricated evidence of events that never happened.
Representatives of the defendants have also criticised the prosecutor for refusing to reveal his sources.
In the Lubanga case, six witnesses were found to be fake and unreliable. The court ordered some of the victims who testified and whose evidence was deemed unreliable investigated by the office of the prosecutor.
The court also held highly the requirement for high integrity of witnesses and accuracy of evidence.
On the Kenyan cases, by raising the red flag early enough, Ocampo appears to be keen to seal any gap in his case against the four Kenyans.
“The Office of the Prosecutor of the ICC has drawn attention to the AG of Kenya to the following complaints: hacking of email accounts of a person of interest to the Office of The Prosecutor, intimidation of Office of The Prosecutor witnesses,” Prof Muigai said in a statement.
The AG warned those interfering with the ICC process by intimidating witnesses of severe consequences.
“Without prejudice to the ongoing investigations, I wish to caution that any person guilty of interfering in any way with the process of the cases before the ICC or meddling in the local investigations relating to the 2007/2008 PEV cases, is liable and shall face the full force of the law,” said the AG.
Whatever forms a criminal offence under the Rome Statute, the law establishing the ICC, is punishable under the Kenyan law, meaning anyone intimidating witnesses could be tried in either forum.
Intimidation of witnesses could make them give contradictory statements making them unreliable. According to the Internal Crimes Act, witnesses who give contradictory statements could go to jail for a period of two years.
Those who intimidate witnesses are liable to a jail term of five years, according to the Act.
Muigai said he had instructed Commissioner of Police Mathew Iteere, the Director of Criminal Investigation Department Ndegwa Muhoro and the Director of National Social Security Intelligence Services Michael Gichangi to conduct investigations on the matter raised by the Office of the Prosecutor.
“On the issue of intimidation of witnesses, I have directed the Commissioner of Police, the Director of CID, the Director of NSIS and the Director of Witness Protection Agency to exhaustively investigate the matter and report back to me immediately,” said the AG.
The hacking of email accounts points to a scheme to snoop into communications from ICC agents who could be conducting crucial research to the court regarding the Kenyan case. The AG said he has instructed security agencies to investigate the matter as well.
“With regard to the hacking of email accounts, I have directed the Commissioner of Police, Director of CID and the Director of NSIS to immediately and thoroughly investigate the allegations and report back to me forthwith,” said the AG.
The AG said he has also communicated with the Director of Public Prosecutions Keriako Tobiko on the need to include ICC complaints in the matters concerning the 2007/2008 post-election violence currently under review in his office.
By PETER OPIYO, The Standard