ICC Chief Prosecutor Fatou Bensouda has claimed she has telephone recordings of associates of President Uhuru Kenyatta inducing two key witnesses to withdraw their evidence.
Bensouda filed a 41 page document on Tuesday opposing Uhuru's application to stay the proceedings against him.
She argued that Uhuru's "application for a permanent stay of proceedings comes nowhere near the high threshold the Appeals Chamber has established for such relief. On the contrary, the matters raised in the Application show why a trial is necessary."
"The arguments regarding the credibility of the Prosecution's Mungiki witnesses merely raise possible avenues of cross-examination and lines of defence. The Defence's arguments on witness credibility - which omit facts that undermine the Defence's position and which the Prosecution disputes - are reasons to have a trial, not reasons to avoid a trial," she said.
Bensouda named people who offered witnesses P-0011 and P-0012 money to drop their testimony but their names are redacted. Bensouda said she recorded the telephone conversations of the bribery attempts with permission of the witnesses.
Uhuru has already claimed that the same two witnesses witness 11 and 12 wanted to extort money from him before crossing to the prosecution. During the confirmation of charges hearings in September 2011, he claimed they were "professional criminal extortionists".
In an application to the court for a stay in October 2013, Uhuru accused the same two witnesses of interfering with defense investigations. "To determine the scope of the bribery scheme, the Prosecution conducted a series of monitored telephone calls between P-0012 and [REDACTED], and between the witness and his family members," Bensouda stated..
"The conversations revealed that [REDACTED], holding himself out as acting on behalf of the Accused, offered P-0012 money and other benefits in exchange for the witness's agreement to withdraw his evidence," she said.
Bensouda said the redacted person indicated that "Mr Kenyatta was informed of the scheme and wanted to avoid direct involvement because he was concerned about getting caught tampering with evidence."
In the document, Bensouda confessed that it was "extremely difficult" for her to get Mungiki to testify as many of their colleagues had been assassinated. According to her, witnesses 11 and 12 were first contacted by Uhuru's associates in January 2011.
The witnesses said that in February they were approached by a State House operative and another person who tasked them to identify "witnesses who would be willing to 'say whatever they [the intermediaries] want' about the Accused's involvement in the PEV. According to the account provided by P-0012, the intermediaries stated that funds had been 'set aside to buy' witnesses, and instructed the two to 'look for these people. We buy them'. The intermediaries are reported to have stated that individuals who agreed 'to say Uhuru . . . did not use the Mungikis' will be paid a large amount of money."
Witness 12 said that they were told that funds had been "set aside to buy" witnesses and instructed them to look out for other possible witnesses who could testify that Uhuru was not involved. Witness 12 claimed that the offer of payment was "coupled with the threat of harm" to those who did not cooperate.
They were told to prepare a report on how to bring on board other Mungiki witnesses for the defence. Witness 11 cooperated on the report with a person who allegedly worked with Uhuru during the post election violence.
"P-0011 and P-0012 reported that they went along with the scheme for a time and acted as Defence intermediaries, connecting Defence counsel with Mungiki members. P-0011 and P-0012 explained that they told the Mungiki members they introduced not to 'say exactly what you know or how you think Uhuru was involved', which could get them 'killed', and that 'later they will be paid', said Bensouda.
By March 2011, the witnesses fell out with Uhuru's intermediaries after they failed to honour an agreement to organise a meeting with Uhuru. They said they were afraid they were going to be killed.
The two then contacted the ICC Chief Prosecutor on March 28, 2011 stating that they were "ready to expose the crimes that were committed by PNU in PEV." The witnesses told the prosecution they had given false statements to the Uhuru's defence because they were still waiting on him to "commit himself" on their security.
The two said Uhuru's British lawyers and their Kenyan counterpart had coached them to exonerate Uhuru. "The witnesses reported that before their interviews, [REDACTED] promised them that "we shall arrange (to meet the Accused) later on", to obtain security "assurance[s]" and to discuss payment," Bensouda said.
Bensouda finally disclosed the identities of the two witnesses on August 1, 2012 after resisting earlier requests to do so.