Kenyan lawyer Paul Gicheru has asked the International Criminal Court to allow him to introduce new evidence, even after informing the court that he would not present a defence case during his trial for witness tampering.
The request came shortly after he notified the ICC’s Trial Chamber III and the prosecution that he did not intend to mount a defence in a filing dated April 25, 2022.
He filed an application to introduce evidence other than through a witness (a bar table motion). Gicheru, through his counsel, Michael G. Karnavas, asked the court to admit 74 documents relating to eight Office of the Prosecutor (OTP) witnesses, including P-0800, P-0341, P-0613, P-0274, P-0738, P-0516, and P-0739.
The documents include investigation reports, witness statements, transcripts of interviews, witness-related expense reports, transcripts from the main case of Kenya’s Deputy President William Ruto and radio journalist Joshua Arap Sang, forensic extraction reports, OTP screening notes, email communications, translations of transcripts of audio-recorded telephone calls, and statements given to Kenyan human rights organisations and other entities.
The defence asked the chamber to recognise the items, which it said were contained in Annex A of the application, as formally submitted into the record of the case. Karnavas explained that Annex A “…set out in detail the relevance, probative value, and authenticity of all items tendered for admission… All items are prima facie relevant and are probative of the issues at trial, namely the credibility of the witnesses that testified during the OTP’s case-in-chief. Any prejudice caused by the introduction of these items is substantially outweighed by their probative value. None of the prior recorded testimony listed in Annex A is submitted for the truth of its contents.”
In response, the prosecution consented to the admission of only six of the 74 items – 37, 42, 45, and 63-65 – and opposed the rest.
Commenting on Gicheru’s notice that his team would not present a defence while at the same time asking the court to admit more evidence, Trial Chamber III’s Judge Miatta Maria Samba said: “The chamber understands the notice not to present ‘a case’ as the defence’s notification that it will not be presenting a case through the calling of witnesses. However, the chamber interprets the defence’s bar table motion as that it still intends to tender evidence into the record.”
She further directed the defence to file any motion it wishes the chamber to rule on by May 4, 2022.
After the prosecution concluded its presentation of witnesses on March 24, 2022, Gicheru was given a month to notify the court whether he would mount a defence.
Karnavas has all along questioned the credibility of the prosecution’s witnesses, claiming that they are untruthful and dishonest.
In an email interview with Journalists For Justice on why he had not bothered to call witnesses, he was dismissive of the prosecution’s case, calling it “pathetic”, “embarrassing”, and “amateurish”. He claimed it was “… absent of any credible and verifiable evidence…”
“Save for the evidence adduced through cross-examination, no defence was warranted,” he said, and insisted that the burden of proof is with the prosecution.
Earlier, the court had rejected the prosecution’s application to submit fresh evidence.
The OTP had requested the court to allow it a variation of time limit to add five items to its evidence list; to submit eight items of evidence other than through a witness; and to introduce prior recorded evidence of witness P-0397. It explained that the new evidence would “assist the court to determine the truth and contribute to the expeditious conclusion of the trial”.
Gicheru had opposed the application, saying the admission of the items not only offended his full enjoyment of a fair trial and right of confrontation, but denied the court the opportunity to meaningfully assess the witnesses for motive, bias, memory, perception, and demeanour in order to establish their credibility.
The court ruled that it did not recognise the items as formally submitted and barred the prosecution from presenting them.
It also rejected the request for the introduction of prior recorded evidence of witness P-0397, saying it had already ruled on the matter.
Gicheru’s trial started on February 15, 2022. The prosecution presented eight witnesses, who were all cross-examined by the defence. Gicheru is facing charges of witness tampering in the main Ruto and Sang case.
