By Janet Sankale
The International Criminal Court judge appointed to hear the case against lawyer Paul Gicheru has described her previous involvement in the Kenya cases as peripheral, as it was limited to logistical activities and operational support to the Office of the Prosecutor (OTP).
Judge Miatta Maria Samba denied ever actively participating in gathering evidence or taking witness statements during her employment at the OTP.
She explained that although she had contact with prosecution witnesses or potential witnesses, her role as a field operations officer under the Operational Support Unit of the Investigation Division between October 2006 and September 2010 did not allow her access to any witness statements taken by the prosecution during its investigative activities or any electronic data banks containing evidence.
“At no point in time did I have discussions with other members of the Office of the Prosecutor about the content of ongoing investigations, their investigation strategies or any other exchange related to the substance of investigative activities,” Judge Samba said in her ruling on a request by Gicheru’s defence for more information about her employment at OTP.
This latest development comes after the ICC’s Presidency notified the defence, on July 22, 2021, that it had constituted Trial Chamber III to hear Gicheru’s case and appointed Judge Samba as the single judge to preside over its proceedings.
Shortly afterwards, defence lawyer Michael G. Karnavas wrote to the court, asking the judge to furnish him with further information, expressing fears that her former employment might impact his client’s right to a fair trial. He requested information regarding the judge’s employment with the OTP, her prior involvement in the Kenya cases, and the contacts she may have with any of the witnesses and investigators in the case.
He wanted information on the names of any witnesses in the cases against Deputy President William Ruto and radio journalist Joshua Sang, and Gicheru, that Judge Samba had interacted with, including the times, locations, and nature of the interactions.
The lawyer also wanted to know whether Judge Samba received or handled any evidence, reports, communications of any kind regarding the OTP’s investigation in the Ruto, Sang, and Gicheru cases, and the nature of the evidence, reports, or communications.
Trial Chamber III took note of the defence’s letter on August 17, 2021 and instructed Gicheru’s lawyer to file a formal submission. Judge Samba’s ruling of August 27, 2021 was a reply to the request.
Gicheru has been accused of witness interference in the original case against Ruto and Sang.
Agreeing to furnish the requested information, Judge Samba said she had taken note of Article 41(2)(a) of the Rome Statute, the principle of fairness and expeditiousness of the proceedings, as well as the right of the accused enshrined in Article 67.
“I strongly believe in the impartiality of the judges as a cornerstone of fair proceedings and the parties to have all the necessary information in order to form their own opinion about this impartiality,” she said.
She stated that she was stationed in Kampala, Uganda, and participated in two missions in Arusha, Tanzania, in the period April to August 2010 and provided logistical support to the operations of the prosecution, including assistance in the operational preparation, execution, and follow-up of the activities of the Investigative Division of the OTP.
“I would rent interview rooms for investigators coming to the field from headquarters in The Hague and arrange for the movement of the witnesses to interview locations. I travelled to the northern part of Uganda on many occasions between October 2006 and September 2010 and, I travelled, to Arusha, Tanzania, and to Kenya on two occasions between April and September 2010 to maintain contact with witnesses by collecting and exchanging logistical information with them. This was done in preparation for meetings with prosecution investigators,” she said.
She explained that her contact with prosecution witnesses or potential prosecution witnesses was limited to logistical assistance only and consisted of operational support for the investigations, mainly in the Uganda situation, and to a much lesser degree she helped to maintain contact with prosecution witnesses in the Darfur and Kenya situations.
In relation to the Kenya situation, she noted that the head of the Operational Risk and Support Unit within the Investigation Division was her supervisor at the time, and that she did not recall the names of the investigators who went to the field office from the headquarters.
She noted that she could not cite specificities, such as dates and other details, from memory because her employment with the prosecution had been over for more than 10 years, and she did not keep any information concerning her work with the OTP due to security and confidentiality reasons.
“For the same reasons, I am not in a position to provide any further details with regard to any witnesses with whom I interacted with while providing operational support to investigators working on the Kenya situation or cases related to this situation. However, I note that the prosecution has already provided the defence with details in its possession concerning contacts I had with witnesses related to the Kenya situation or any of its cases. I also note that the prosecution stated that it provided all the information it had on my employment with them to the defence,” she stated.
In any case, she said, she could not have been involved in the potential investigations concerning Gicheru’s case since she had long left her employment at the OTP.
“…I note that the Prosecution stated that it contacted witnesses with regard to potential Article 70 investigations only in 2011 and 2012, after I had left the Court. Accordingly, I cannot have been involved with witnesses being questioned with regard to potential Article 70 investigations.”
In her conclusion, Judge Samba encouraged the defence to communicate with the prosecution for any additional information.
On August 25, 2021, the prosecution filed its response to the defence’s request, confirming that all the information available concerning the judge’s previous employment at the OTP had been provided to the defence in a formal communication on July 29, 2021.