Lawyer Paul Gicheru’s trial before the International Criminal Court (ICC) over alleged witness tampering starts today with some witnesses declining to cooperate.
Although it is Gicheru who will be on trial, focus will be on Deputy President William Ruto who the prosecution claims bankrolled bribery machinery to interfere with witnesses who were to testify against him and radio journalist Joshua Arap Sang.
In court filings, DP is referred to as the “big man Ruto” who wanted no stone left unturned.
Deputy prosecutor James Stewart’s sole role is to place Gicheru at the heart of witness tampering and with this, DP Ruto maybe in a precarious position as the court might revive a case lying in the prosecutor’s lockers.
Stewart was expected to present 11 witnesses. However, six are no longer foreseen to testify.
Witnesses P-0495, P-0731, P-0732, P-0733, P-0734 and P-0735 declined to testify in the case.According to the prosecution, P-0495 stated that he was promised a job even if he did not have the right qualifications.
He allegedly told another witness identified as P-0613 that he agreed to be paid Sh2.5 million and had also been offered a job as a private security officer.
Hostile witness
“Immediately following his meeting with P-0613, P-0495 was intercepted and interviewed under caution by Office of The Prosecutor (OTP) investigators and P-0495 admitted to accepting an offer of a bribe in exchange for withdrawing from the ICC,” argued Stewart.
The prosecutor in his case brief says that P-0495 was to provide key evidence linking Ruto to Post-Election Violence (PEV) crimes committed in Turbo in Uasin Gishu.
There is another witness, P-743 who the prosecution says is hostile.
The prosecution had sought Kenya’s assistance to force him to testify.
The witness is believed to have linked the late Meshack Yebei to a team that interfered with witnesses in the DP Ruto and journalist Sang’s case. In his filings, Stewart asked the court to seek Kenya’s intervention and have the witness testify either in person or via video link.
The witness is wanted for his claim that Gicheru and Yebei were part of the plan to have witnesses in the Ruto-Sang case recant their statements.
“P-0743 stated that Gicheru and Yebei had been involved in a series of activities (redacted) in exchange for money. He further stated other prosecution witnesses had been interfered with.”
Future prosecution
Yebei was touted as a star ICC witness against Ruto and Sang.
He was abducted on December 28, 2014, and found dead four days later. No arrests have been made since then.
In 2015, the ICC denied Yebei was on the prosecution’s witness list but regretted that he had been killed.
ICC terminated Ruto and Sang’s case. This is different from being acquitted. A judgment of acquittal means that an accused person has been found to be not guilty of the crimes they were charged with.
In many jurisdictions, including before the ICC, such a finding may prevent the future prosecution of the accused for the same crimes.
But, in terminating the case against Ruto and Sang, it was made clear that they could be prosecuted afresh in the future.
Ruto and Sang faced three charges of crimes against humanity: murder, deportation or forcible transfer of population and persecution allegedly committed during the 2007-2008 post-election violence in Kenya.
Trial Chamber V(A) by majority decided to terminate the case.
The presiding Judge Eboe-Osuji was of the view that there was evidence that suggested that witnesses had been interfered with and therefore it was justified to leave open the opportunity to re-prosecute the accused.
On April 17, 2016, President Uhuru Kenyatta took to the podium, raised his hand and swore to a crowd of supporters that he would not allow any other Kenyan to face prosecution outside the country.
In an assuring pitch that attracted thunderous applause, he vowed ‘huko haturudi!’ (we are never going back).
The President also declared: ‘imwekwisha!’ (it is done).
This was after the ICC withdrew charges against him and Francis Muthaura.
“I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter,” he said.
However, the ghosts of the ICC that stalked Kenya have returned, with the country’s second in command being at heart of the trial of Gicheru, who is a government employee. Gicheru, who is the chair of the Export Processing Zone Authority, is staring at 30 years in jail after ICC prosecutor slapped him with six counts of bribery and corruptly inducing witnesses to interfere with justice.
Each charge attracts five years behind bars. The lawyer’s run-in with the law revolves around six witnesses who the OTP says were crucial to its case against Ruto and Sang.
Offered money
With their identities masked, the witnesses are P-0397, P-0516, P-0613, P-0800, P-0495, and P-0536.
The prosecution claims the witnesses were offered kickbacks of between Sh500,000 and Sh2 million each. The prosecution alleges that the witnesses admitted meeting Gicheru and were offered money to withdraw as prosecution witness while some relocated.
According to the prosecution, there was a ranking process that determined how much one was to be paid. Gicheru surrendered to ICC in 2020 after an arrest warrant issued by the Hague-based court over claims of witness interference.
“It is unsurprising since the modus operandi of Gicheru and his associates was to leverage the intermediaries’ knowledge of prosecution witnesses to target and corruptly influence them.
“Then, in turn, these corrupted witnesses were used to target other witnesses known to them. The inevitable result is that many of the targeted witnesses knew each other,” deputy prosecutor Stewart claims in the court papers.
According to Stewart, one witness, P-0274, narrated that Gicheru informed them that they needed to reach and buy out everyone involved to stop assisting ICC.
“Gicheru told P-0274 they needed to reach everyone and pay people to stop assisting the ICC, as the “big man”, Ruto, wanted “no stone left unturned,” the prosecution claims.
Gicheru denies the claims. He says that he requires at least three months to interrogate evidence produced by the ICC prosecutor.
His lawyer, Michael Karvanas, told judge Maria Samba that owing to the number of documents being supplied by the prosecution and his small team, he does not expect to take less than three months.
Karvanas however, termed the case as simple, saying they will only rely on the documents produced in court and cross-examination of the witnesses in court. “We are at a disadvantage. Three months is not an unusual time,” said Karvanas during the status conference held at The Hague.
The prosecution says it has 43,524 items of evidence against Gicheru.
Stewart says the evidence gathered is contained in 221,110 pages. He told the judge that they are reviewing more documents and had submitted additional 77 incriminating ones.
Stewart is of the view that from the total number of pages, the prosecution has identified a pool of 8,639 items that are in 97,843 pages as potentially implicating Gicheru.
The prosecution has also disclosed that it will use pseudonyms and distort witnesses’ voices to protect them.
The prosecution says it will require 57 hours and estimates that it will take 122 hours for the judge to conclude the case. Stewart says this is approximately 27 court days.
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