By Janet Sankale
The International Criminal Court (ICC) has allowed the transfer of some of the evidence extracted from the original suit against Kenya’s Deputy President William Ruto and journalist Joshua Sang to lawyer Paul Gicheru’s case record
In a ruling dated August 24, 2021, Trial Chamber III’s Judge Miatta Maria Samba noted the submissions of the prosecution and the factual information concerning the connection of the witness with the current proceedings and ordered the transfer of transcripts and related materials to the record of the Gicheru case.
This was the second ruling in the matter after the court rejected part of the prosecution’s first application on January 15, 2021. Earlier that month, the prosecution had filed a request seeing to have the transcripts of several witnesses who testified in the main case transferred to the record of the Gicheru suit. The prosecution explained that this was necessary since it considered the information material to Gicheru’s defence and, therefore, subject to disclosure.
However, the court rejected part of the motion and ordered that additional redactions be applied to the transcripts. The remainder of the original request was granted.
On July 14, 2021, the prosecution filed another request to have items related to the testimony of one of the witnesses in the original case transferred to the record of the current proceedings. The prosecution explained that while the witness was mentioned in the original request, no transcripts relating to his testimony were included due to an ongoing updated security assessment. The prosecution informed the chamber that all security matters had been resolved and that the factual allegations concerning the witness were closely related to the current proceedings.
Gicheru has been accused of witness tampering in the original case against Ruto and Sang. This was one of the two cases before the ICC that followed the country’s post-election violence in 2007/2008.
The ruling is among the latest happenings in the case as it gathers momentum to its trial date. One such development is the postponing of the first status conference that had been set for September 17, 2021. Gicheru, through his counsel, Michael Karnavas, had asked the court to push the conference by a week to September 24, citing scheduling conflicts.
“According to the first sentence of Regulation 35(2) of the regulations of the court, the chamber may extend a time limit if good cause is shown. In this specific instance, although the chamber considers that the request could benefit from further substantiation, it notes that the prosecution does not oppose the postponement,” Trial Chamber III’s Judge Samba ruled.
Earlier, Gicheru had also sought to have Judge Samba removed from presiding over his trial, expressing fears that the she might have forehand information about the case due to her involvement in the Kenya investigations.
In his request dated August 19, 2021, lawyer Karnavas requested the judge to provide information regarding her employment with the Office of the Prosecutor (OTP), her prior involvement in the Kenya cases, and contacts she may have with any of the witnesses and investigators in the case.
The filings came weeks after the ICC Pre-Trial Chamber A dismissed Gicheru’s request to appeal the decision on the confirmation of charges dated July 27, 2021.
Karnavas had wanted the chamber to grant leave to appeal the decision on the confirmation of charges, arguing that the Prosecutor relied on unreliable and uncorroborated hearsay statements of prosecution witnesses.
“Granting leave to appeal materially advances the proceedings in Mr Gicheru’s case, moves forward the proceedings and removes doubts on the correctness of the decision or map of course of action along the right lines,” Karnavas argued in his request for leave to appeal.
In response, the prosecution argued that the cursory arguments raised in the request failed to address the requirements of Article 82 (1) (d) of the Rome Statute, which provides that either party may appeal a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
The prosecution argued that the chamber had no power to certify any issue arising from the confirmation decision for appeal and that such matters were reserved for any final appeal under Article 81 of the Trial Chamber’s judgment on the merits.
“The defence request is inadmissible, and should be dismissed in limine, since Article 82 (1) (d) of the Statute is inapplicable to proceedings under Article 70,” the prosecution stated.
The chamber, composed of Judge Reine Adélaïde Sophie Alapini-Gansou, found that the law was clear on the fact that the defence had no legal basis to submit a request for leave to appeal pursuant to Article 82 of the Rome Statute.
Gicheru has been accused of offences against the administration of justice, including corruptly influencing, intimidating, soliciting, and interfering with witnesses (P-0397, P-0516, P-0613, P-0800, P-0495, P-0536, P-0341, P-0274) in the Ruto and Sang case, which resulted from the 2007/2008 post-election violence in Kenya. The offences were said to have been committed in order to induce them to withdraw as prosecution witnesses; refuse to cooperate or cease cooperating with the prosecution and/or the court; and/or to recant the evidence they had provided to the prosecution.
According to court filings, former ICC Prosecutor Fatou Bensouda claimed that witnesses admitted meeting Gicheru, and that he offered them money to withdraw as prosecution witnesses in the case against Deputy President Ruto.
According to the prosecution, the evidence brought against Gicheru indicated that he was a member of a common plan and was suspected to have been the coordinator of the scheme to locate, identify, and corruptly influence prosecution witnesses.
Gicheru has denied being part of any criminal scheme to scuttle the case against Ruto and Sang, and urged the chamber to disregard the evidence against him, which he termed as “hearsay, uncorroborated, and unreliable”.
However, on July 15, 2021, the ICC pre-trial chamber found that there were substantial grounds to believe that Gicheru committed, as a co-perpetrator, or under alternative modes of liability, offences against the administration of justice between April 2013 and the closure of the Ruto and Sang case in September 2015, in Kenya.
The charges against Ruto and Sang were terminated because the prosecution evidence had deteriorated due to witness interference, and it was not possible to determine their guilt or innocence. However, the case might be reopened if the prosecution finds new evidence.
Gicheru surrendered himself to the Dutch authorities on November 2, 2020. The court had issued an arrest warrant against him and Philip Kipkoech Bett on March 10, 2015, over allegations of witness interference. The lawyer’s first appearance before the court was on November 6, 2020. On December 11, 2020, the court severed the cases against Gicheru and Bett.
Gicheru was released on restrictive conditions on February 1, 2021. Ruto’s former lawyer, Karim Khan, who is currently the ICC Prosecutor, recused himself from leading the case. Deputy Prosecutor James Stewart will take over, in accordance with Article 42(7) of the Rome Statute.