Attention has now shifted to Kenyan lawyer Paul Gicheru’s defence after the prosecution concluded its case at the International Criminal Court.
His legal team has yet to decide whether or not to mount a defence, saying it was waiting for the prosecution to finish presenting its evidence.
“With the prosecution having rested its case, we are entitled to make an assessment of the evidence before the trial chamber and to consider whether putting on a defence case is warranted,” lead counsel Michael G. Karnavas told Journalists For Justice in response to a request for his comment.
The defence has to make its decision known to Trial Chamber III by Monday, April 25, 2022. Judge Miatta Maria Samba ordered that should the defence decide to present evidence, it must also tell the court how many trial days it will need.
The judge fixed the date after Gicheru’s defence failed to announce its decision on March 10, 2022, as earlier instructed. Instead, the lawyers informed the court that they first wanted to hear the prosecution’s case and assess its evidence before they could “…intelligently decide whether and to what extent” they should present a case. The lawyers asked the court to allow them to announce their decision on May 16, 2022. However, Judge Samba brought the date forward, saying the time requested was excessive.
Gicheru has been charged with offences against the administration of justice consisting in corruptly influencing witnesses regarding cases from the situation in Kenya. A warrant for his arrest was issued against him and Philip Kipkoech Bett on March 10, 2015 and unsealed on September 10, 2015. On November 2, 2020, the lawyer surrendered himself to the authorities of the Netherlands, which transferred him to the custody of the ICC the next day. Pre-Trial Chamber A later severed the cases against Gicheru and Bett.
The lawyer’s trial opened on February 15, 2022 in The Hague, with the prosecution presenting eight witnesses. Gicheru’s legal team vigorously cross-examined the witnesses, in the process trying to discredit most of them and portray them as liars whose testimony could not be trusted.
Karnavas, justified the strategy as “not only essential, but mandatory” in the defence of their client. “Mr Gicheru, like all accused who come before the ICC, is entitled to a robust defence by competent lawyers who are required, under the code of professional conduct and ethics, to vigorously employ all legal and ethical means in defending their client. This includes robustly confronting the witnesses,” he told JFJ.
In keeping with the lead counsel’s determination to expose the prosecution witnesses’ alleged “…propensity to lie and convincingly make up stories for financial gains and to be relocated out of Africa…”, his deputy, Suzana Tomanović, tried to depict the last prosecution witness, P-0739, who finished testifying on March 24, 2022, as a liar who gave inconsistent testimony and, therefore, could not be believed.
The witness had told the court that Gicheru paid him KSh2 million to withdraw as a witness in the main case against Kenya’s Deputy President William Ruto and radio journalist Joshua Sang. However, during cross-examination, he could not explain how he had spent the money.
The defence lawyer pointed out other inconsistencies in the witness’s testimony. One was that P-0739’s testimony since 2014 did not indicate that he said Gicheru gave him the money.
Another point was that although he claimed that he was taken to Gicheru’s residence to discuss the money and the recanting of his evidence against Ruto, he could not describe the house to ICC investigators or draw a sketch of it. Instead, he claimed he could not remember the details.
The defence said that in an interview conducted in July 2014, P-0739 said he had not been to the house.
“I don’t remember talking about his residence and I don’t remember stating about that particular issue,” the witness said.
He blamed his inconsistencies on psychological issues because of worrying about his family.
The lawyers deployed their strategy of trying to discredit the prosecution witnesses right from the beginning when they tried to poke holes in the evidence of the first witness, P-0800, who took the stand on February 15, 2022 to testify how he was approached on more than one occasion by phone and in person and asked to accept the offer to recant his evidence and not to testify in the Ruto and Sang case.
He claimed to have been offered between KSh1.5 million and KSh2.5 million in July 2013. He said he alerted the investigators about the bribery attempt.
While cross-examining him, Karnavas kept calling him a liar and tried to question his credibility, accusing him of double-dealing because of the multiple SIM cards he kept and used to engage the accused, other witnesses, and investigators from the Office of the Prosecutor (OTP) without the knowledge and approval of the prosecution. The witness insisted that the SIM cards were for his own security as he had been threatened. He denied the lawyer’s accusations that he tried to coach other witnesses to lie to ICC investigators.
The third witness, P-0613, who said she recorded fellow witnesses trying to convince her to withdraw as a witness, was termed a liar who just wanted to collect as much money as possible from the ICC .
Karnavas said the witness had claimed to have three children, although she had only one, because of monetary gain.
But she rejected the accusations, saying in her culture nieces and nephews could be referred to as one’s own children.
“In our culture we always say your children and your brothers’ children are also your children,” she replied.
She denied the defence’s allegations that she had gone around the village trying to get people to testify against Ruto.
One of her recordings, which the prosecution presented in court, was of a witness telling P-0613 that Ruto had instructed Gicheru to bribe prosecution witnesses to withdraw from the case.
In another phone conversation recorded on May 13, 2013, witness P-0516, who testified in the Gicheru case, urged P-0613 to withdraw as a prosecution witness in the Ruto and Sang case.
In several other recordings, witnesses said Gicheru was behind the bribery scheme.
The second prosecution witness, P-0341, was also alleged to have been offered a bribe and intimidated to refuse to be a prosecution witness, as well as influence other witnesses.
Earlier, the prosecution had requested the court to allow it to introduce the witness’s prior recorded statements, but the plea was declined because the application was made late.
P-0341 told the court that during their first meeting Gicheru paid him KSh500,000 not to testify in the Ruto and Sang case, although he had asked for KSh5 million. He added that he was made to sign a contract to withdraw as a witness and threatened with death if he disclosed anything discussed at the meeting.
Karnavas said there was no evidence to prove the witness’s claim that the money had come from Gicheru and Ruto.
P-0274, the fourth prosecution witness, told the court that he was offered KSh500,000 to withdraw his testimony.
He said he was accompanied to his first meeting with Gicheru by another victim who had also received KSh500,000 for his role in explaining “how things are done”.
“Gicheru told me that I am going to receive KSh500,000 if I stop giving my statements in the Ruto case and that I am going to receive more if I brought other witnesses. He told me that ‘Mkubwa’ wants no stone left unturned in this case,” said P-0274.
He said he was given KSh10,000 as transport money and promised more at the next meeting.
He also received a phone that was to be used during his interactions connected to the case. He explained that he did not show up for the next meeting because he thought it was a trap and he feared for his life.
The fifth prosecution witness, P-0738, testified about the “common plan” to bribe witnesses to recant their evidence and cease cooperating with the ICC officials.
She talked about the identification, location, and contacting of witnesses and claimed that this was carried out by Ruto after the 2007 General Election.
P-0730, an investigator from the OTP, gave an overview of the investigations in the Kenya situation at the time of the alleged offence.
He admitted that some witnesses may have made up stories or been coached by others so that they could get the court’s protection.
According to the investigator, although some witnesses claimed they had received bribes, it was difficult to trace the money back to its sources.
He said his team went through witnesses’ mobile phones and established crime patterns. Gicheru, journalist Walter Barasa, Philip Kipkoech, and Meshack Yebei, who has since been murdered, were singled out as the main suspects.
He narrated the frustrations of the investigators as they probed the crimes committed during the 2007/2008 post-election violence. The Kenyan government declined to cooperate with the investigators, while some witnesses had doubious testimonies after being bribed. The investigators were also denied access to the crime scenes.
The seventh prosecution witness, P-0516, admitted trying to implicate Gicheru in order to get favours from the ICC.
He admitted that he approached the ICC investigators in 2015 and offered to implicate the lawyer in exchange for his security and that of his family.
He told the court that he thought his life was in danger after his friends started disappearing. This prompted him to make up stories in a bid to convince the investigators to admit him into their programme.
“I apologise for making up the statements. It is because some of my friends at home were being killed and I was not sure who was killing them. I was confused since I knew people were following me and my life was in danger,” he said.
According to the witness, he was recruited by another person in 2012 to testify against Ruto and Sang. He withdrew after he failed to get the support and good life he had been told the ICC would offer him.
During cross-examination, he told the court that he was given three options: the ICC’s help, to be left on his own, or to get the government’s protection. He chose the first option, which came with the condition that he had to record a statement on the alleged witness interference by Gicheru.
The defence claimed that the testimony was the product of the witness’s imagination and insisted that it was all lies.