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Revealed: How prosecutors fought to protect witnesses in Kenyatta case

JFJustice / 07 April 2017

How prosecutors fougt to protect witnesses in Kenyatta case

By Susan Kendi and Kwamchetsi Makokha

 

A trove of 20 documents published on the International Criminal Court’s website offers a rare peek into frantic efforts to protect 12 witnesses who would testify against Uhuru Kenyatta and Francis Muthaura.

Prosecutors fearing for the safety of the 12 witnesses had repeatedly applied for the court’s permission to hold back the names and identities of five witnesses from the accused’s lawyers until a month to the opening of the trial. They followed that with a request to withhold information in the statements of another seven witnesses from lawyers. A third application sought to hide the names of investigators interviewing witnesses.

In a public redacted version of the judges’ decisions, first published on February 3, 2017, Trial Chamber V(b) judges Kuniko Ozaki (presiding), Robert Fremr and Judge Geoffrey Henderson disclose how the prosecution was allowed to hold back from disclosing the identity of the witnesses to Kenyatta and Muthaura’s lawyers until the Victims and Witnesses Unit had put into place adequate protective measures.

Following the VWU’S report, the judges ruled that there was no point in continuing to withhold the identity of Witness P-232 from the defence lawyers beyond February 11, 2013 – a month before Kenyatta was elected as President of Kenya.

The applications and the decisions of the judges have remained unknown since they were confidential, with only the ICC’s Victims and Witnesses Unit being notified in one instance.

Prosecutors had argued that the nature of the four witnesses’ evidence was “unique” and had substantial incriminatory value, and that there was some “powerful incentive” to interfere with these witnesses.

Secondly, it was feared that there might be a risk of witness tampering. The prosecution alleged that during the Pre-Trial stage of the case, intermediaries allegedly acting on behalf of Kenyatta targeted witnesses exhorting them to rescind their testimony and decline to testify.

Prosecutors also said that shortly after the confidential disclosure of the identities of Witness 11 and 12 to Kenyatta and Muthaura’s lawyers, witnesses were contacted and offered a deal not to testify.

Defence lawyers opposed the requests and wanted all witnesses and their statements revealed. They argued that the delayed disclosure of possibly 12 out of 35 prosecution witnesses was unmanageable and unreasonable. For good measure, Muthaura’s lawyers also applied to have one of their witness placed under the ICC’s protection programme.

Prosecutors alleged that three of the insider witnesses whose names had already been disclosed confidentially to the Defence had been interfered with in. During the pre-trial stage [a witness] “was the target of a pre-disclosure bribery campaign by intermediaries purportedly acting on behalf of the Accused, which aimed to persuade the witness to withdraw his testimony regarding the PEV and to agree not to testify for the Prosecution.”

The Prosecution also claimed that a number of leaks of confidential information have occurred in this case so far. They argued that disclosing the redacted transcripts would provide Kenyatta and Muthaura’s lawyers with enormous information of the witnesses’ accounts.

ICC Prosecutor Fatou Bensouda withdrew charges against Muthaura in March 2013, and was forced to make a similar withdrawal of charges against Kenyatta in December 2014 after failing to muster sufficient evidence to proceed to trial following a spate of witness withdrawals and recantations.

 

 

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By Terry Jeff Odhiambo

Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.

The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.

Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan[1], to the Central African Republic[2] to Egypt[3] and Ethiopia[4], abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.

The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders. 

Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo[5], Rwanda[6] and Niger[7] are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.

Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries. 

The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31).[8] They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.

The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa. 

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