DEPUTY Prime Minister Uhuru Kenyatta has demanded to know the identity of two key prosecution witnesses at the Hague.
Uhuru is accused of five counts of crimes against humanity relating to the post-election violence in 2007 and 2008. He has applied to the trial chamber judges for the revelation of the identities of witnesses number 11 and 12.
He also wants ICC prosecutor Fatou Bensouda to confirm whether she will rely on the two witnesses as well as witness number 4 at the trial. His lawyers Gilliam Higgins and Steven Kay last week asked that Uhuru be given all prosecution evidence from the three witnesses as it tends to show his innocence. "The Defence submits that it is in the interests of justice and a fair trial that this information is provided as soon as practicable to ensure adequate preparation by the Defence for trial and the efficient organisation of future Defence investigations," Kay and Higgins said in a filing.
Meanwhile the ICC Pretrial Chamber headed by Ekaterina Trendafilova ruled last week that the Kenyan state cannot be trusted to receive "all statements, documents and other evidence" in the possession of the Court. The Pre Trial Chamber is still handling certain pending matters even though the case has proceeded to full trial starting in April 2013.
The government wanted to use the materials to prosecute the Kenyan suspects locally and stop the ICC cases by arguing that the Kenyan state was actually prosecuting the four. "Given that the Chamber is duty bound by law to protect the safety and physical well-being of victims and witnesses, it cannot but reject the GoK's Second Cooperation Request at this stage," the Pre-Trial judges said in a unanimous decision issued last week.
The application was filed on September 16, 2011 by Rodney Dixon and Geoffrey Nixon at the request of then Attorney General Amos Wako to challenge the of the case on behalf of the government. They lost it all the way to the appeal. Former ICC prosecutor Luis Moreno Ocampo requested the chamber to deny the request. Earlier this month, his replacement Bensouda took the same line citing witness security concerns. This position was further supported by the Victims and Witness Unit (VWU) of the ICC.
"Both the Prosecutor and the VWU have reported a number of incidents according to which witnesses had either been subject to threats or actually suffered certain harm. Moreover, there are other reported incidents whereby confidential information related to the Office of the Prosecutor's witnesses has been leaked," the judges ruled.
In his application, Uhuru said witnesses 11 and 12 had dealt with his defence last year. He said neither the pretrial chamber nor the prosecution had confirmed whether they are the same persons as he alleged. During the hearings in the Hague last September, Uhuru's defence claimed witnesses 11 and 12 demanded Sh2.3 million to silence prosecution witnesses. He said they turned against him after he refused to budge.
Uhuru's lawyers believe the case against him rests on those two witnesses and witness number 4 whose evidence they believe is inconsistent. "The Defence submits that confirmation of the identities of OTP-11 and OTP-12 must be provided in order to uphold the fair trial rights of the Accused as this information impacts directly upon the credibility of these individuals and the core of the Defence investigations at this stage," the lawyers said.
According to the lawyers, witnesses 11 and 12 are self-confessed Mungiki members "on hire to effect the outcome of this case." The lawyers also believe that the two witnesses were induced by the ODM to cross over to the prosecution side. They claim a report by independent counsel Gary Summers confirmed this. They accuse witness 4 of changing his story line without justification.