ICC Prosecutor Fatou Bensouda. Photo/FILE
In Summary
Leaders say the five first prosecution witnesses have made a mockery of entire process as expert warns the other 35 witnesses could cement Bensouda’s case
Cabinet secretary says ongoing cases bad for Kenya because they could disrupt peace
By Walter Menya
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When prosecution witness 487 linked Deputy President William Ruto’s trademark baseball cap with some hidden messages many in the public gallery mutedly laughed it off.
The witness had claimed that Mr Ruto wore a hat that was distinct from the rest of the ODM pentagon members as a way of communicating coded messages to his Kalenjin community to evict Kikuyus from the Rift Valley.
On Thursday, Mr Ruto arrived with the cap in court which his defence counsel displayed during cross-examination. And Mr Hooper showed the witness the cap, asking “It is a very nice hat, isn’t it?” to which the witness responded “Correct.”
The witness had also all along from November last year told the prosecution that he had attended the last ODM rally at Eldoret’s 64 Stadium and even described the arrangements at the meeting.
After being shown videos of the last ODM rally in the region, he turned around to say he had confused 64 Stadium with Huruma grounds where the rally indeed took place.
Before he left the witness stand, the witness requested to address the chamber. “I want to apologise to any one I may have offended by my coming here,” he said before being cut short by presiding judge Chile Eboe-Osuji who said there was no need for that.
Meanwhile, witness 189 had told the Trial Chamber that she was aware top Kibaki administration officials hatched a plan to fix Mr Ruto.
The defence had proposed to the witness that officials including former Gichugu MP Martha Karua who was at the time the Justice minister, Mr Mutea Iringo, then deputy permanent secretary for Internal Security and President Kibaki’s political advisor Nancy Gitau were responsible for recruiting and protecting witnesses to testify before the Waki Commission over violence in the Rift Valley.
Witness 376 on the other hand had a damning admission that he had changed his story after meeting prosecution investigators. The witness had in his original statement to investigators denied that the violence was not planned but in his second statement, he said the violence had been “well arranged”.
So far, five witnesses have testified with about 35 more, comprising victims of the violence and experts yet to testify. But the performances of the five that have testified have left lingering questions whether ICC’s witnesses will be the prosecution’s greatest undoing.
“I think it is not the kind of witnesses anyone would expect in any serious court, not even a magistrate’s court in Kenya,” said Elgeyo Marakwet Senator Kipchumba Murkomen.
“For the prosecution to proceed with these kind of witnesses shows the poor kind of investigations that took place. The witnesses failed the expectations of even those who would have wanted Ruto or Uhuru to be brought here and it is an embarrassment to the prosecution,” the senator said.
Another senator, Kericho’s Charles Keter, said witnesses changing their stories was testimony enough that they had been compromised. Mr Keter said the testimonies from the five witnesses would not convince any serious judge.
And he says at the appropriate time, Mr Ruto would be entering a no-case-to-answer to have the charges against him dropped. However, this can only happen after all the prosecution witnesses have testified.
“These witnesses in one way or another may have been compromised because if you recall there is one who admitted that he changed his story when he met these people (ICC investigators). I think some of the witnesses came because of the financial gains or alternatively when the prosecution found out they did not have a strong case, they started compromising the witnesses,” said Mr Keter.
Mr Keter says Kenyans are now starting to believe Mr Ruto’s position that the case has a “rotten underbelly” as his lead counsel Karim Khan said in the opening statements.“I don’t think there is any witness who has not been compromised because even for a person who is not a lawyer you can seek that this doesn’t add up. You hear someone saying this thing was not planned then goes around and claims this thing was planned.
“All we are hearing is hearsay which anybody can sit down and create. There are no facts . There is nobody who will say ‘I categorically stand by what I am saying. I saw it, it happened this way and these are the facts’ instead you will find somebody being everywhere,” said Mr Keter.
Mining Secretary Najib Balala who was in The Hague echoed similar sentiments. “These witnesses who have been coached are not helping the country,” he said.But Mr Ndung’u Wainaina of the International Centre for Policy and Conflict cautioned Kenyans against rushing to make judgement on the cases on the basis of the five witnesses.
“The cases are still at very early stages. Remember the witnesses came in immediately after opening statements. There is still a lot to be canvassed. We still have more sessions for the witnesses and prosecution to disclose the documentary and other material evidence,” said Mr Wainaina, suggesting the prosecution may still shock people with other evidence apart from the live witnesses.
“Definitely there will be legal arguments and demonstrations to prove that indeed the accused bear the greatest responsibility for the crimes committed as per the time (period) on the charge sheet,” he said.
And if the chamber still needs clarification, Mr Wainaina said Articles 64 and 69 of the Rome Statute allow judges to call additional witnesses as they consider necessary.
Meanwhile, allies of Mr Ruto are also doubting whether the testimonies are fostering national reconciliation and healing.What has emerged so far, they said, is the commoditisation of Kenya’s ethnic communities and the portrayal of Kikuyu and Kalenjins as mortal enemies.
The witnesses, they said, had heavily relied on stereotypical images they have of the ethnic communities as grabbers, violent and looters, among others.
Many would also be waiting to hear the testimony of Herve Marpeu, the expert witness who will be tracing the historical relations of Kenyan communities, the Rift Valley communities in particular.
“I don’t think this is the direction we want to go. It reminds even those who were young of what happened. It is really ridiculing our tribes and the Kenyan people like when you say Kalenjins are known to be having bows and arrows.
“These things are there. Which family doesn’t have a panga? It doesn’t mean that when you have a panga it is a weapon,” said Mr Keter. “It has really balkanised our tribal arrangements in the country,” he said.Had this been an election, Mr Keter said, some politicians would have capitalised on the testimonies of the witnesses.
According to Mr Balala, the witness testimonies are not solving the problem in Kenya.
“We are actually opening wounds in Kenya with the ethnic undertones. Tribal clashes have been there since 1992 when Kenya re-introduced multiparty politics, he said.
“The only time we did not have tribal clashes was in 2013. If we managed to secure that why don’t we continue with more peace and reconciliation and healing of the nation?” the cabinet secretary wondered.
But Mr Wainaina holds that the reconciliation that took place after the 2007/08 post-election violence was only at the level of political elites.
As such, he said, we have negative peace laced with tensions instead of positive peace.
“The strongest signs of reconciliation could have been the ability of the displaced persons to return to their farms and or businesses.
According to him, the fact that government bought land for the displaced close to ‘ancestral” which were considered ‘more safe’ points to the lack of positive peace.
The only reason why the current ICC cases should be allowed to run their course, he explained, is to enable communities to fully obtain truth behind the crimes and the reparation of the victims.
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