CREDIBILITY ISSUES RAISED

Bensouda wants ICC to reject Gicheru's request on dismissal of 7 witnesses

Gicheru wishes the Chamber to reject the evidence of seven witnesses raising issues of credibility.

In Summary

• Gicheru urged the Chamber to disregard the entire categories of evidence by attaching labels – sometimes incorrectly – such as “hearsay” or “uncorroborated” or unreliable.

• But Bensouda in her submission says in conducting its assessment of the evidence, the Chamber must be aware of the limits as to the assessment of credibility that can and should be made at the confirmation stage.

Paul Gicheru appearing before the ICC via video-link from the ICC Detention Centre on 6 November 2020 ©ICC-CPI./ICC
Paul Gicheru appearing before the ICC via video-link from the ICC Detention Centre on 6 November 2020 ©ICC-CPI./ICC

Prosecutor Fatou Bensouda wants the ICC to reject Paul Gicheru's request to dismiss seven witnesses in his case. 

Gicheru's defence lawyer Michael Karnavas, wants the chamber to reject the evidence of seven witnesses raising issues of credibility.

Gicheru urged the Chamber to disregard the entire categories of evidence by attaching labels – sometimes incorrectly – such as “hearsay” or “uncorroborated” or unreliable.

In support of its arguments, the Defence quotes jurisprudence selectively and out of context.

But Bensouda in her submission says in conducting its assessment of the evidence, the Chamber must be aware of the limits as to the assessment of credibility that can and should be made at the confirmation stage.

"The Chamber should reject the criticisms advanced in the Defence Submissions and confirm the charges," Bensouda said.

In her submissions, the prosecutor says that Trial Chamber has the benefit of assessing all of the evidence presented in support of the charges, including live testimony, and assessing credibility against this background.

Gicheru surrendered before the ICC last year following an arrest warrant issued by the Hague based court over allegations of witness interference in DP William Ruto's case.

In her latest filing, the prosecutor says the defence misstates the Prosecution’s case, misinterprets the legal standard for confirmation of charges and advances speculative theories that are unsupported by evidence.

"The defence submissions ignore or mischaracterise corroborating evidence and fail to explain why intermediaries implicated in corruptly influencing witnesses would purport to be acting on behalf of  Gicheru in contemporaneous statements made in the course of the execution of the offence," she said.

Bensouda says the defence’s arguments based on the “no case to answer” standard are misplaced and speculative.

"While certain Chambers have entertained motions for acquittal at the conclusion of the Prosecution case, this procedure is not specifically recognised by the legal texts of the Court and may or may not be permitted by the Trial Chamber in this case, should charges be confirmed," she says.

She further says the defence assumes that the evidence upon which such a decision would be taken would be identical to the evidence before the Chamber at present, but there is no basis for such an assumption.

"Not only will the Prosecution have the opportunity to present its full case to the Trial Chamber, including calling oral testimony, but it is also permitted to continue to investigate the case and supplement any deficiencies in the period between the disclosure deadline for confirmation and for trial," she said.

Last week, Gicheru dismissed claims by the ICC prosecutor that he was responsible for scuttling the case against Ruto.

His lawyer terms the claims by the prosecution as "absurd" and "nonsense".

Gicheru is asking the judges not to confirm the charges against him as there is no evidence that he was a member of any common plan to identify, locate, and corruptly influence prosecution witnesses.

"The OTP offers no evidence that Mr Gicheru was “associated with and/or [a] supporter of RUTO at the relevant times,” Karnavas tells the court.

Bensouda told the court that she has a number of conversations between intermediaries acting for Gicheru and his associates that were recorded by the Prosecution Witnesses they were targeting.