The case against Mr. Kenyatta before the International Criminal Court in
The Hague appeared to be on ever-shakier footing this week after two
witnesses withdrew, at least one of them claiming safety fears as the
reason, the prosecutor, Fatou Bensouda, said in a filing before the court.
Prosecutors held discussions with another witness, identified as Witness
426, “to determine whether any measures could be taken to mitigate his
concerns and secure his attendance at trial,” the filing said, without
specifying whether those concerns were security related. “These talks
were unsuccessful, and Witness 426 maintained that he was not willing to
testify.”
Prosecutors have accused Mr. Kenyatta of using his extensive family
fortune to finance death squads in the midst of the violence that broke
out after Kenya’s presidential election in 2007. Mr. Kenyatta has
consistently proclaimed his innocence, asserting that the accusations
against him are based on malicious gossip.
The details remained fuzzy, as the court filing was heavily redacted,
with one witness, identified as Witness 5, citing “insurmountable
security risks for himself” as his reason for refusing to testify.
The latest setbacks for the prosecution have only increased speculation
that Mr. Kenyatta will go free in the end. “Sorry, folks, but the pace
at which these I.C.C. witnesses are melting, I can be forgiven for
wondering who will testify at The Hague,” said an editorial on Friday in
The Standard, a Kenyan daily newspaper.
More than 1,100 people are believed to have been killed in organized
attacks that followed the disputed election of 2007. Mr. Kenyatta stands
accused of crimes against humanity including murder, rape and forcible
transfer.
“For the witnesses this situation is unheard-of: you have a sitting
president who controls the army, the police, the secret police,” said an
international lawyer closely following the trial who considered the
matter too delicate to speak on the record. “How could witnesses believe
they can be safe?”
A lawyer for Mr. Kenyatta vehemently denied all accusations of witness
tampering or intimidation on the part of the defense. “There is not a
single scrap of evidence accepted by the judges that President Kenyatta
has interfered with witnesses,” Steven Kay, a lawyer for Mr. Kenyatta in
his case before The Hague, said in an e-mailed response to questions.
“The comments are made as part of a strategy to hide a weak case.”
A third witness was dropped this week because the evidence was no longer
needed, according to the filing. The prosecutor’s office said Friday
that 30 people remained on the witness list. Ms. Bensouda also informed
the court that she would potentially add witnesses as the investigation
continued.
Last month the trial was rescheduled from July to Nov. 12 to give the
defense additional time to prepare. “The witnesses have been under
enormous pressure — the more time that goes by the greater the risks,”
said the lawyer following the case, adding that a number of witnesses
have been taken out of the country for protection. “The prosecutor
wanted the trial to start right away, if for no other reason than the
safety of the witnesses.”
In March, Ms. Bensouda withdrew charges against a co-defendant, Francis
Kirimi Muthaura, a former government official accused of working with
Mr. Kenyatta to organize death squads in the wake of the disputed
election.
“What it says is that you can use your political and financial might to
deal with the witnesses and dismember the case,” said James Gondi,
program adviser for Kenyans for Peace With Truth and Justice, a
coalition of nonprofit groups. “There are mechanisms within the
International Criminal Court to find out who is behind the intimidation
and bribery.”
Kenya’s deputy president, William Ruto, who along with Mr. Kenyatta
still faces charges, has called the cases against them a “conspiracy of
lies.” According to Mr. Kenyatta’s lawyer, Mr. Kay, the defense has
“evidence of the bulk of the witnesses being supplied by political
opponents.”
This week, Mr. Kenyatta celebrated his 100th day in office. With his
election in March, he became the second sitting head of state in Africa
facing a major case before the International Criminal Court. President
Omar Hassan al-Bashir of Sudan stands accused of fomenting genocide in
Darfur.
Mr. Bashir has refused to appear before the court. He recently left a summit meeting in Nigeria prematurely after human rights activists filed a lawsuit seeking his detention.
Kenya remains an ally of the United States in the fight against
terrorism and Islamic extremism, but the relationship has been seriously
complicated by the I.C.C. case. President Obama skipped Kenya, his
father’s birthplace, on his recent trip through Africa.
The trial has attracted a great deal of public attention in Kenya, much
of it negative. Supporters of Mr. Kenyatta deride the case as
politically motivated, attacking the court and the prosecutor as biased.
“Some public officials in Kenya have fostered an anti-I.C.C. climate in
the country, which has had a chilling effect on the willingness of
potential witnesses and partners to cooperate,” Ms. Bensouda said in a
written submission on May 10.
In this week’s filing, she wrote that “there has been public speculation
about Witness 5’s cooperation with the court, despite the fact that the
prosecution has designated his identity as confidential.”
Ms. Bensouda has expressed worry about the intimidation of witnesses for
months. In an interview in April, she said: “The safety of the
witnesses is one of the greatest challenges we face in the Kenya cases.
There has been unprecedented intimidation. It’s a very difficult
situation. We take this very seriously.”
She also complained that the Kenyan government had insufficiently
cooperated with the investigation, which it is bound to do as a full
signatory of the court. In the interview she said that the government
had ignored repeated requests from her office for financial records
related to the investigation and that she had been refused access to
police officers who were on duty during episodes of violence.
In the written submission in May she informed the judges that she had
received reports from witnesses that officials had sought to influence
their testimony.
“If it’s not addressed we will see it in future cases before this kind
of tribunal,” said Mr. Gondi, the Kenyan activist. “What it does is it
reinforces impunity.”
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