- One of the witnesses refused to appear for a meeting with the ICC prosecutors.
- The fellow refused to provide documents supporting bribery claims.
Image: ICC-CPI./ICC
Barely a week to the start of lawyer Paul Gicheru’s trial, the International Criminal Court is faced with the headache of uncooperative witnesses which may wreak the case.
Gicheru’s trial in the witness interference case is set to begin on February 15 before ICC judge Miatta Maria Samba with James Stewart and Anton Steynberg as prosecutors.
But even as the five-day trial is set to start, at least four key witnesses have pulled out the last minute.
The prosecution has secured orders to compel at least one witness to appear before the court and testify.
Prosecutors have again notified the court of their intention to request for summons to have a second witness compelled to testify.
Gicheru is faced with six counts of witness tampering in the case against Deputy President William Ruto and Radio Journalist Arap Sang.
The ICC prosecutor has reported challenges with pulling to the dock, witnesses identified as P-0604, P-0495, P-0743, and another that they are yet to reveal identity.
The court was told that Witness P-0604 refused to appear for a meeting with the ICC prosecutors and refused to provide documents supporting bribery claims.
Prosecutors were kept waiting at the agreed location during a past scheduled meeting and the witness has not responded to emails from the court.
Witness P-0495, who was to testify on Ruto’s alleged involvement in the post-election skirmishes, also refused to testify against Gicheru.
The submissions by the witness who had gone missing in 2013 and resurfaced recently were, however, admitted in the Hague-based court as part of the evidence.
One of the witness broke contact with the court on January 25, just a month to the trial.
The court was told further attempts to reach him were without success and on January 28, 2022, the witness remained unresponsive.
The sought-after witness had told the prosecution that Gicheru influenced him to withdraw from the Ruto and Sang case.
ICC prosecutors had detailed its unsuccessful attempts to contact the witness, the same being the case of Witness P-0743.
Judge Samba said the reasons for which the prosecution sought to file a request to summon the witness were “clearly outside of its control.”
“It was not foreseeable to the prosecution that the witness would break off any contact with the court,” her ruling delivered on February 3 reads.
“Indeed, as long as the witness was still in communication with the court and expressing his willingness to cooperate voluntarily, there was no need for the prosecution to contemplate summoning him,” the judge held.
On February 2, Judge Samba issued summonses to the witness to appear and testify before the court, even if it would be through a video-link.
The court has requested the assistance of authorities in an unidentified country to ensure the appearance of the said witness.
The ICC expects the authorities to inform the witness (P-0743) of his obligation to appear and to serve the summons upon him.
According to the prosecution, “P-0743’s testimony is required for the determination of the truth and therefore, necessary.”
The prosecution, in its submission to the court, underscored the relevance of the expected testimony of the witness, hence summons were necessary to obtain the same.
ICC thus wants the concerned state to “make appropriate arrangements for the security of the witness”, in consultation with the Victims and Witnesses Unit.
The court undertook to serve the witness with summons and directed registry officials to do so “with or without the assistance of the [concerned authorities].”
Witnesses who recanted their statements or disappeared were blamed by the ICC for the mistrial of the Ruto and Sang case.
Gicheru surrendered to authorities in the Netherlands on November 2, 2020, after arrest warrant on charges of corruptly influencing ICC witnesses.
The court confirmed the charges against him in July 2021 citing substantial grounds to believe that the lawyer committed the offence between April 2013 and September 2015.
The trial chamber held that the offences were to implemented to undermine the ICC in the Ruto and Sang case.
The court also expects the authorities to facilitate, “by way of compulsory measure as necessary”, the appearance of the witness who was also in the Ruto-Sang case.
The ICC maintains it has the power to compel the appearance of a witness, in line with provisions of the Rome Statute.
“As a consequence, the witness in question has a legal obligation to appear should the chamber issue a summons for his attendance,” the court held.
Judge Samba said the request for cooperation (of the concerned government) is relevant, saying the witness being hunted had “made statements concerning witness interference in the main case.”
“Furthermore, the prosecution interviewed the witness in relation to its then ongoing investigations, where he implicated, among others, the accused—Gicheru,” the court papers read.