Prosecutor’s Achilles heel as Gicheru case starts at the ICC

Kenyans who had been lined up to testify against Deputy President William Ruto at his collapsed crimes against humanity trial at The Hague will once again be in the spotlight as the trial of lawyer Paul Gicheru starts on Tuesday at the International Criminal Court (ICC).

Along with the witnesses, some big names, including at least one serving MP from the Coast region, will likely come up at the trial.

Like in the Ruto-Sang case, non-cooperative fact witnesses could prove to be the prosecution’s biggest hurdles in proving the six counts of witness tampering against Mr Gicheru who will be in The Hague for his trial. As part of the conditions for his conditional release, Mr Gicheru is required to be physically present in The Hague during the trial.

Not guilty plea

Mr Gicheru is expected to plead not guilty to the charges against him when the trial commences on Tuesday, according to the defence’s trial brief.

“Mr Gicheru categorically rejects and contests everything contained within the four corners of the Decision on the Confirmation of Charges. He is not guilty of any of the confirmed charges,” the brief states.

The trial will be taking place before a single judge, Miatta Maria Samba from Sierra Leone.

So far, the prosecution has reported challenges with about four fact witnesses who had earlier given statements on how Mr Gicheru allegedly compromised them. The trial chamber has issued summonses to two witnesses, P-0743 and P-0723, and reached out to an unnamed state party to help with getting the witnesses to testify. That state party has not responded to the trial chamber’s directions on cooperation to get the witnesses.

“Despite the prosecution's use of all reasonable efforts at its disposal to locate or contact P-0723 to secure his voluntary attendance at the trial, he remained unreachable,” Deputy Prosecutor James Stewart stated in a recent filing.

Mr Stewart was put in charge of the case against Mr Gicheru after Prosecutor Karim Khan recused himself, having been a defence lawyer for Dr Ruto when these cases of alleged witness tampering occurred.

Broken off all communications

Witness P-0743 is reported to have broken off all communications with the prosecution between January 25, 28 and 31, 2022.

“Since the witness now appears to be unwilling to cooperate further with the court and time is of the essence to ensure a smooth presentation of the evidence, the prosecution can only secure attendance at the upcoming trial via a summons request," the prosecutor's office stated.

Witnesses P-0604 and P-0495 have been dropped over non-cooperation with the prosecution. P-0495’s prior recorded testimony has, however, been admitted. In the case of P-0604, the prosecution had planned to meet with the witness “to obtain documents corroborating the evidence he had provided concerning payments made to him by the accused and his associates, and to obtain updated information regarding his current circumstances.”

However, the planned meeting as well as a subsequent one failed because the witness did not turn up and also cut off communication with the prosecution.

“In the circumstances, the prosecution has concluded that P-0604 is not genuinely willing to cooperate and has consequently decided not to add him to its List of Witnesses,” the prosecution had informed the trial chamber.

At the same time, the ICC registry has notified the parties that two witnesses, P-0800 and P-0341, have been assigned legal advisers to guide them against possible self-incrimination.

Witnesses credibility

For the defence, the credibility of the witnesses will be at the centre of trying to prove that Mr Gicheru is innocent. The defence has argued that the fact witnesses are not reliable given their flip-flopping when they recanted their testimonies in the Ruto case.

“Unsurprisingly, the OTP is attempting to try this case essentially through prior recorded testimony and to limit the confrontation process – the greatest legal engine to get to the truth, something which was not available to the PTC (pre-trial chamber) in confirming the charges – to the maximum extent possible,” the defence said in its trial brief, pointing to the way the prosecution is avoiding calling some witnesses in favour of prior recorded testimonies.

Even though he will not be on the dock and there also exist very remote chances the crimes against humanity charges could be revived, the Deputy President’s name will nonetheless feature prominently in the trial of Mr Gicheru.

Apex of a common plan

According to the prosecution, Mr Ruto was at the apex of a common plan to harass, intimidate and bribe witnesses who were to testify against him and journalist Joshua Sang at their trial arising from the 2007/8 post-election violence.

Dr Ruto’s ally, former Devolution Cabinet Secretary Charles Keter, however, says that it won’t matter how many times the DP is mentioned in the Gicheru trial.

“We will wait and see but I do not think that makes the DP worry. He is much at peace. When you know that in the first case you were innocent that clears your conscience,” said Mr Keter.

Dr Ruto’s case at the ICC was dropped due to lack of sufficient evidence, with the prosecution free to revive the case if they can obtain new evidence.

As well as Dr Ruto, a current MP from the Coast region could feature prominently as among those who allegedly was part of the plan to identify, threaten and compromise witnesses to recant the testimony they had given to the ICC prosecutor against the DP. The MP, then working for a private company, is said to have been sent to a witness whom he allegedly forced to recant his testimony on camera.

Other big names that will feature prominently at the trial are Silas Kibet Simatwo who chairs the board of Amaco Insurance, Isaac Maiyo who was the former chairman of the Constituencies Development Fund (CDF) of Eldoret North constituency, and former Turbo MP Elisha Busienei.

Mr Simatwo has been variously described in prosecution documents as “an influential Kenyan businessman and long-time business associate of Ruto”, and “an eye of Mr Ruto.”

These people, the prosecution has said, were members of the common plan to identify, corruptly influence and intimidate witnesses.

“Simatwo, Maiyo and Busienei also made essential contributions to the Common Plan inter alia by working with Gicheru to coordinate with Ruto and participated in meetings between Gicheru and prosecution witnesses during which they were corruptly influenced. In some instances, these other managers contacted prosecution witnesses telephonically in furtherance of the Common Plan,” the prosecution said.

Mr Gicheru surrendered to the ICC on November 2, 2020, five years after the court issued a warrant of arrest against him for alleged witness tampering.

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