Capital FM (Nairobi)

14 August 2013

Kenya: Bensouda Plans to Unleash Fresh Witnesses

Photo: The Star
Deputy President William Ruto to appeal to ICC over his constitutional duties and the trial.

Nairobi — The International Criminal Court Prosecutor said on Wednesday that she intends to amend the list of witnesses ahead of the trials against president Uhuru Kenyatta, his deputy William Ruto and presenter Joshua arap Sang scheduled for September 10 and November 12.

Speaking via telephone with ReportingKenya.net, Cooperation Advisor for the Kenya Situation Shamiso Mbizvo said the Trial Chamber can allow the prosecution to amend its witness list post confirmation stage under exceptional circumstances.

"There is a process in place for adjustments to be made to our witness list prior to the start of trial. To the extent that any witness becomes unavailable due to security issues... ICC regime allows the OTP (Office of the Prosecutor) to make a submission to the chamber to add witnesses out of time for exceptional reasons. The witness list can change," she asserted.

She said the prosecution has previously asked the chamber to allow for addition of new witnesses after withdrawals linked to insecurity of some of those initially lined up to testify at the trial stage.

The Head of Jurisdiction, Complementarities and Cooperation Division at the prosecutor's office Phakiso Mochochoko further assured that the prosecution was relying on credible witnesses.

He has once again denied that the court ever coached any of the witnesses in the cases against President Uhuru Kenyatta, his deputy William Ruto and former radio presenter Joshua arap Sang.

"OTP adheres to highest standards of collection of evidence and handling of witnesses. It is not the role of the OTP to coach any witnesses. We can categorically and clearly state that there has not been any coaching of witnesses," he explained.

"Witnesses that come to the ICC do so voluntarily. No one has been coached. We are receiving numerous incidences of witnesses being intimidated, being threatened being bribed and all these have contributed to the fears of witnesses but still most of them still want to come forward."

Mbizvo challenged those doubting the credibility of prosecution witnesses to keenly look at the legal process of the ICC which she explained takes witnesses through a thorough vetting process.

She further explained that the witnesses will also be at the disposal of the defence teams to cross examine them during the trials.

"The decision on whether the witnesses are credible or reliable will be taken by independent judges after a very thorough process. Every witness who is submitted by the prosecutor will be examined and then the accused will have the opportunity through their lawyers to cross examine, to challenge any gaps in evidence of that witness," she said.

On cooperation matters Mochochoko complained that the government of Kenya has failed to honor its pledge to cooperate with the court.

He said Kenya has not responded to its request to submit information required in the two Kenyan cases. Attorney General Githu Muigai in May this year said the government had already submitted 35 of the 37 requests made by the prosecution.

He said the government did not have the remaining information required by the prosecution.

Githu explained that assistance in the remaining two requests had not and would not be honoured by Kenya because ICC prosecutor Fatou Bensouda failed to follow the laid down legal procedures in pursuing them.

He said the government would not cede ground on the two requests because the law requires Bensouda to file a legal suit that would compel the government to submit the details she was seeking.

During the call in, the two officials from the OTP also emphasised on the seriousness of its appeal challenging the decision of the Trial Chamber that excused Ruto from continuous presence during his trial.

According to Mbizvo, the Rome Statute makes it mandatory for all accused persons to appear in person for their trials; "the OTP and the Trial Chamber have a different reading of the Statute but this is a key issue which may affect the fairness of the trial. Our position is that the accused should be physically present."

The Appeals Chamber is expected to make a ruling if Ruto should attend all the sessions of the trial that starts on 10 September or the decision that allowed him to skip some sessions will stand.

Judie is a Special Projects Reporter. She has eight years experience in Journalism in Kenya and Germany. She has scooped awards in Reproductive Health, Population and Development and Gender and Development. She has participated in international conferences in Germany. She has a soft spot for human rights and justice stories.

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