19 February 2016

Kenya: Reliable Witnesses Are Bensouda's Only Hope

Now that the dust of some unusual celebrations over the dismissal of recanted evidence and those of Valentine's Day is settling, perhaps it is time to ask which important witnesses the ICC chief prosecutor still has in her corner, the cherished witnesses who might send Ruto and Sang to jail if only they manage to convince the judges that the two committed crimes against humanity. After all former Liberian president Charles Taylor was swept into a bottomless pit by only one credible witness.

The five witnesses - who would have made Fatou Bensouda's case as solid as that of the wise man who built his house upon a rock - are gone with the wind.

Perhaps out of Bensouda's 29 witnesses who testified before the Court, there are witnesses who may still raise Bensouda's hopes for justice, the ones who were strong enough to not yield to temptations of taking bribes and lucrative jobs or to death threats but who also gave reliable testimonies.

If the "no case to answer" submission by the defence team is thrown out, and knowing that several testimonies have been ruled out, which of the three remaining witnesses will the judges find reliable?

I saw Ruto Slap Kivuitu

Among the witnesses of interest is witness P442 who alleges that Ruto slapped the then head of the Electoral Commission of Kenya (ECK), Samuel Kivuitu, who has since passed away.

Yes, she saw it with her own eyes. She is an eyewitness and not one of the five who recanted their evidence due to fear, intimidation, death threats and family pressure. This witness never had problems with her eyes, so she can definitely be classified as a reliable witness. She, like mother courage, traveled all the way to The Hague to say what she saw. She stood by her country and by justice.

Witness P442 told the Court in March 2014 what she is 100 per cent true: she saw the violence perpetrated by now Kenyan Deputy President William Ruto on Kenyan television. This evidence is of very high importance because it portrays Ruto as a violent, short-tempered character.

During the defence team's cross examination, Ruto's lawyer, David Hooper, referred to an assertion the witness made in her statement to prosecutors. Before the election results were announced at the tallying centre in Nairobi, she said, Ruto slapped Kivuitu.

"Did you really see that?," Hooper asked. The witness said she had seen it on television.

"Kivuitu refused to announce the election results, and Ruto slapped him, and he was removed from there," she said.

According to media reports, "the witness told the Court how she and other people from the Kisii ethnic community managed to flee Kapsabet.

She escaped with her family on 30 December 2007, the day the presidential ballot result was announced.

"On that day, I left my home with my children and sought refuge at my Kalenjin friend's house," she said, adding that they subsequently fled into the bush when youths threatened to burn down the owner's house.

They later managed to get to the police station in Kapsabet. She told judges how they encountered roadblocks manned by armed youths, some wearing ODM colours. At some of the roadblocks, youths had lit huge fires and used large stones to block the roads.

The witness described how, in order to identify fellow ODM supporters among the Luo, Luhya and Kalenjin, the young people folded their trousers to the knee on one leg as a sign of support for the party.

The witness spoke of how, as they passed through various roadblocks, Kalenjin young people and women hurled insults at them, telling them they would kill them and package them in a container for Kibaki to use as fertiliser on his tea and coffee plantations.

Kalenjin women also referred to Kikuyus as "black snakes". The witness said she understood this to mean that snakes were the enemies of Kalenjins and deserved to be killed.

On reaching Kapsabet police station, the witness said, they found about 4,500 people camping there, the majority Kikuyus. She stayed at the police station for three days. The witness said that some people at the police station had deep machete cuts on their head, and some had arrows lodged in their bodies.

"I threw my child out of the window"

The other person of interest when it comes to reliability issues is Witness P-356 who choked with emotion as she gave evidence against Ruto. She described to the Court how armed men with painted faces and carrying cans of petrol trapped mostly women and children from a rival tribe inside the Kiambaa church on New Year's Day 2008. In total, 28 people were killed and dozens wounded in the attack.

The witness narrated what she saw with her own eyes that night. "The door (to the church) was barricaded with bicycles, and we were all trying to escape," she said. "I threw my child out of the window," she added, her voice cracking.

Is this the witness whose evidence the judges may believe to be credible enough to throw Ruto to the lion's den in The Hague?

Ruto was on Waki List

Another witness of interest whom Bensouda's team may have to rely on for evidence beyond any reasonable doubt is Gavin McFayden.

Mc Fayden told the Court that Ruto was one of the people named in the famous Waki envelope. The Waki list, also known as Ocampo's envelope, carries the names of those who allegedly bear the greatest responsibility for the bloodshed that followed the 2007 presidential elections in Kenya. That violence is the root cause of the trial of Ruto and Sang at the ICC. McFayden served as one of the members of the Commission of Inquiry that drew up the list and sealed it in an envelope before giving it to former UN Secretary General Kofi Annan.

During cross examination of the witness Ruto's lawyer Khan asked:

"Did his (Ruto's name) appear in the envelope?"

"I believe it was", McFayden replied.

Later on, Sang's lawyer Kipchumba Kigen -Katwa, also asked McFayden about the commissioner's list.

"May I ask you if Mr. Sang's name was in that envelope?" Kigen-Katwa said.

"No, I don't recall", McFayden replied.

Witnesses performing their civic duty

When the prosecution was seeking witnesses, there were calls by the former ICC chief prosecutor, Luis Moreno Ocampo, through the media and civil society for anyone who had information regarding the PEV to volunteer. Some witnesses performed their civic duty and recorded their statements. Some people, who allegedly witnessed violence and continued to wine and dine with PEV culprits, kept quiet only to show up years later to criticise witnesses from their computers.

But as they say on any Christian wedding day, "if anyone knows any reason why these two should not marry, he or she should say so, but if not, then they should forever hold their peace."

So in the same breath, if you know those who were involved in the PEV but kept silent at the wedding between Kenya and the ICC, when witnesses were being sought, then please shut up forever and hold your peace. You failed your country.

Let the remaining patriotic witnesses have their day in court. Do not be bitter or envious of the privileges they have because they sacrificed their lives for the cause.

It will be up to the three judges - Chile Eboe-Osuji, Robert Fremr and Herrera Carbuccia - to establish if for a fact these criminal activities actually took place and how the suspects were directly involved. And then, after that, there is the small matter of a possible appeal.

Omwa Ombara is the pseudonym of an international journalist and author.

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