What you need to know:
- Mr Gicheru says the prosecution headed by Fatou Bensouda is relying on unbelievable and discredited witnesses.
- Mr Gicheru says Ms Bensouda has offered contradictory and inconsistent evidence from unreliable witnesses.
Kenyan lawyer Paul Gicheru, who is accused of corruptly influencing prosecution witnesses in investigations into the 2007 post-election violence, has denied being part of an alleged well-oiled bribery machine that scuttled the case against Deputy President William Ruto.
In his plea to the International Criminal Court (ICC) not to confirm charges against him, Mr Gicheru says the prosecution headed by Fatou Bensouda is relying on unbelievable and discredited witnesses who were out to extort money and other benefits from The Hague-based court.
Through defence counsel Michael Karnavas, Mr Gicheru says Ms Bensouda has offered contradictory and inconsistent evidence from unreliable witnesses who frequently contacted each other and schemed together on how to secure benefits from the ICC.
The American trained defence counsel has also questioned why the prosecution failed to probe claims that ICC staff members may have engaged in sexual relations with the witnesses and their families, been bribed by witnesses and were party to the submission of false financial claims.
“The OTP offers no explanation as to why an amicus prosecutor was not appointed as requested by Prosecutor-elect Mr. Karim Khan Q.C. when acting as Ruto’s lawyer, based on his knowledge and good faith belief as an officer of the court that “ICC staff members may have: (i) engaged in sexual relations with the witnesses and their families; (ii) been bribed by witnesses; and (iii) were party to the submission of false financial claims,” Mr Gicheru’s lawyer says.
Another allegation was that there were breaches of Victims and Witnesses Unit (VWU) protocol by witnesses, and obtaining pecuniary benefit from the false financial claims.
Mr Karnavas argues that there is no evidence Mr Gicheru was a member of a network that the prosecution describes as common plan whose scheme was to corruptly influence witnesses that had been lined up against Dr Ruto.
Scuttling the case
The prosecution in its list of evidence had said Mr Gicheru was the manager of the common plan aimed at benefitting Dr Ruto by scuttling the case.
The prosecution alleges intermediaries of executing the plan included former Turbo MP Elisha Busienei and Silas Kibet Simatwo, who chairs the board of Amaco Insurance Company.
According to Ms Bensouda, other actors in the common plan included Isaac Maiyo, who was the former chairman of the Constituencies Development Fund (CDF) of Eldoret North Constituency, J.N. Njuguna, Arap Mitei and Gregory Mutai. Another identified by the name Kogo, was alleged to have been Mr Gicheru’s bodyguard.
But Mr Gicheru's defence counsel in a very harsh language to Ms Bensouda-led team says she is cherry-picking the evidence, artfully ignoring inconsistencies, improbabilities, contradictions, lack of corroborations and presenting it out of context and devoid of relevant evidence.
"The Office of the Prosecutor (OTP) absurdly claims that the (Pre Trial) Chamber should ignore the quality of the evidence and essentially make findings and conclusions on the quantity of evidence. Nonsense," says Mr Karnavas in the 20-page document that is heavily redacted.
He also says there is no evidence Mr Gicheru was associated with or was supporter of Dr Ruto at the relevant times (2012- 2014 when the alleged witness interference happened).
Mr Karvanas argues that prosecution has not shown that it made any attempt to contact the individuals it claims were members of the common plan and question them in relation to witness interference in Dr Ruto's case. He says Ms Bensouda offered hearsay evidence of unavailable witnesses in prior recorded statements.
He states that the prosecution is relying on impeached witnesses who were found to have been incapable of belief by the court's Trial Chamber that was handling the case facing Dr Ruto and radio journalist Joshua Sang.
According to Mr Karvanas, the witnesses’ evidence was disregarded by the Trial Chamber, 'presumably because it found the evidence to be unreliable, not meriting consideration'.
He does not want the court to confirm the charges levelled against Mr Gicheru on grounds that the prosecution has not met the threshold of the standard of proof.
"Thus, a qualitative analysis of the evidence is required to ensure that Mr Gicheru is not put through the meat grinder of a trial on unfounded charges only to result in a judgment of acquittal – i.e., the evidence taken as a whole is so unsatisfactory and so unreliable that the Trial Chamber would not convict based on that evidence," he states.
The documents are largely redacted so as to protect details of the prosecution witnesses.
It is the defence belief that a qualitative assessment of the evidence, individually and holistically, considering the nature of the evidence, its reliability and credibility, its source and the context in which it was obtained, the nexus to the charges or suspect and reliability shows that Mr Gicheru is not criminally responsible for the offences of corruptly influencing witnesses.
Mr Karnavas says evidence before the court is insufficient to confirm the charges and should give pause to any expectation that it would sustain a no case to answer challenge, were the case sent to trial.
"Beneath the surface of the cosmetically impressive 170-page DCC (document containing charges) and the OTP’s glossy rendition of the events that it claims demonstrates that Mr Gicheru corruptly influenced OTP witnesses, is a pervading pattern of calculated neglect of evidence, abject disregard of context, and reckless abandonment of fairness and discernment," states the defence counsel.
Should the Trial Chamber take the OTP’s evidence at face value as it claims it must, the lawyer says the confirmation of charges would erroneously be predicated on unsound and erroneous findings of fact and a misapplication of the law.