Nairobi — The Criminal Investigations Department now wants the identity of an alleged International Criminal Court witness who was filmed retracting his evidence verified.
The department has written to Attorney General Githu Muigai seeking his help to ascertain whether James Maina Kabutu is indeed ICC witness 4 as claimed.
The details are curiously being sought in a probe targeting university scholar Makau 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 Mr 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 on 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."
The CID director however, he is not sure of Mutua's capacity and role in such involvement, if any.
"We are investigating this matter and would like to interview Matsanga, Mutua and others who may have useful information on this matter," the CID director said in the letter in which he clarifies that "such information would assist us to address the complaint raised by the Office of the Prosecutor."
The CID director wants the AG to seek answers from the ICC Prosecution office in The Hague on the nature of contacts Makau has had with witness 4 who is said to have testified against Kenya's deputy Prime Minister Uhuru Kenyatta and former Head of the Civil Service Francis Muthaura in Case Two.
"The CID would be interested to know the nature of any contacts Mutua may have had with this person, the context of any such contacts and whether in the course of any such contacts, a crime or crimes under the International Crimes Act may have been committed," Muhoro states in his letter.
Muhoro says his investigation commenced on March 2 when Matsanga posted on a website associated to him material allegedly relating to Kabutu.
The material relates to a deposition alleged to have been taken in the USA where the said witness recanted all the evidence he had offered to the Waki Commission and which was apparently subsequently forwarded to the ICC.
Soon after Matsanga posted the deposition on the website associated with him, Mutua published two articles in his regular column of the Sunday Nation, with an elaborate critique of the alleged recanted evidence.
This prompted Matsanga through his lawyer to write a formal complaint to the CID, accusing Mutua of interfering with the ICC cases and defaming him.
Mutua when summoned to record a statement, instead sent his lawyer Paul Muite who urged police to use other avenues in a defamation case instead of harassing his client.
"I have reviewed the contents of the two articles in the context of Dr Matsanga's complaint with regard to defamation. This is a civil issue and no one is stopping Dr Matsanga from pursuing his rights in that regard in the civil court," Muite said in his statement to the police dated April 17.
He said he had gone through articles published by his clients and could not see anything defamatory to Matsanga.
"So who is interfering with witnesses? My clients and I are surprised that the CID are taking the trouble to ask my clients to record statements spending their time and tax payers money instead of investigating Dr Matsanga," he said.
Muite has advised his client against travelling to Kenya to record statements with the police over Matsanga's complaint.