By Susan Kendi
The Pretrial Chamber A of the International Criminal Court has established that Paul Gicheru was in charge of finalising the process of the withdrawal of witnesses and that it was not his role to approach the witnesses directly.
The decision has been delivered five years after the former ICC Prosecutor, Fatou Bensouda, issued a statement regarding Trial Chamber’s decision to vacate charges against Kenya’s Deputy President, William Samoei Ruto, and Journalist Joshua Arap Sang. Ruto and Sang faced five counts of crimes against humanity for their alleged role in the violence that erupted after the December 2007 presidential election
“In this case, 17 witnesses who had agreed to testify against the Accused subsequently withdrew their cooperation with the Court. Prosecution witnesses, in this case, were subjected to intimidation, social isolation, and threats to prevent them from testifying. In the end, the Trial Chamber was in effect prevented from having the opportunity to assess the true merits of the Prosecution case,” said Fatou Bensouda in her statement.
During the confirmation of charges hearing, Paul Gicheru denied the bribery charges read out to him. “The allegations read to me are false. All [the] six [counts] are false,” said Gicheru during the confirmation of charges hearing.
However, the Court has found that there is sufficient evidence that he influenced eight prosecution witnesses in the Ruto and Sang case.
i) P-397
Gicheru is alleged to have offered to pay P-397, a bribe of 5,000,000 Kenya Shillings, equivalent to (about 45,261 euros at the time) in cash installments, and threatened him. He later paid him 1,000,000 Kenya Shillings (about 9,052 euros at the time) in two installments, Ksh 600,000 and Ksh 400,000, to withdraw as a prosecution witness in the Ruto and Sang case and stop cooperating with the ICC. He made him sign an affidavit to that effect. Following the agreement, the witness was also to locate and contact witness P-516 to influence him.
According to the court document in 2012, P-397 provided evidence regarding the 2007 post-election violence in Turbo, Kenya, and meetings leading to the 2007 elections at which Ruto and other Orange Democratic Movement party members and supporters allegedly incited violence against non-ODM supporters as well as against Kikuyu people.
On May 14, 2013, the P-397’s withdrew as a prosecution witness in the Ruto and Sang case. In January 2014, P-397 reached out to the prosecution as a result of threats to his life. Prosecution investigators met with him, and after holding an interview, they could not call to testify for security reasons.
Determining the witness’s credibility, the Court found that Chamber the witness statements from January 2014 were consistent and to some extent corroborated by evidence, including the statement of P-516 and other witnesses.
ii) P-516
Witness P-397 approached P-516, explaining that he would get money such as Ksh 500,000 (about 4,526 euros at the time) if he agreed to meet Gicheru. P-397 also told P-0516 that he had been in contact with P-613. Witness P-516 agreed to meet Gicheru, who promised him 800,000 Ksh (about 7,241 euros at the time) in exchange for his withdrawal as a witness in the case. After meeting about four or five times, Gicheru paid him a total of at least Ksh 500,000 Ksh (about 4,526 euros at the time).
In 2012, P-516 had provided evidence to the prosecution’s office that the organisation of the PEV in Kenya, Ruto, and other ODM members and supporters’ plans against non-ODM supporters and Kikuyu people.
Two years later, Witness P-516 was to meet with ICC Court officials regarding his testimony, but he cut off all communication. The Court issued a summon for him to appear in Court, and for this, he testified in September 2014. During his testimony, he refuted his original statement terming it as “false.” Under oath, he claimed that he did not know Gicheru; neither had he visited his office in Eldoret nor bribed to withdraw as a witness in the case.
Analysing the credibility of P-516, the Pre-Trial Chamber stated that the Court could rely on parts of his statement since the evidence he provided initially was supported by the other witnesses in the case.
iii) P-613
As for the third prosecution witness, the Court found her statements reliable, her interaction with the prosecution consistent, and the testimony credible and partially corroborated by other evidence.
Having testified between June 18 and 20, 2014, P-0613 disclosed “the witness corruption scheme” by providing direct evidence of attempts by certain individuals to corruptly influence her decision to testify as a prosecution witness and presenting indirect evidence about money offered to specific witnesses in exchange for their withdrawals as prosecution witnesses.
The evidence was provided through an account of her phone conversations with P-0800, P-0516, P-0495, and P-0604 and text messages that she received from unidentified senders from April to September 2013. Part of her testimony was supported by other evidence.
The Defence in the case termed her evidence in Paul Gicheru’s case as “uncorroborated hearsay and merits no weight.” However, the Judges had a different outlook.
“The Chamber finds that the evidence provided by P-613 fits the overall pattern that
emerges from the evidence regarding how individuals such as P-397, P-516, P-800, and P-495 – were approached and in turn approached other potential Prosecution witnesses – to arrange meetings with individuals such as Mr. Gicheru in order to offer the Prosecution witnesses or potential witnesses money in exchange for their withdrawal as Prosecution witnesses and recantation of prior statements given to the prosecution, ” said the Single Judge Reine Adélaïde Sophie Alapini-Gansou, in the decision.
The bench added that Gicheru’s Lawyers did not provide any evidence that would impact P-613 credibility.
Between April and September 2013, P-0516, P-0800, P-0495, P-0604, and some other unidentified actors, attempted to persuade her to withdraw as a prosecution witness.
On September 13, 2013, P-0495 met with P-0613 and attempted to convince her to meet with “them,” including Gicheru.
P-0495 promised P-0613 that “Mr. Gicheru would complete everything for her …and that she would receive government protection.” P-0495 further explained that “they were interested in suspending the main case [Ruto’s and Sang’s Case] because it was taking too long and their objective was to stop it.”
There is also evidence that P-800 was given money to help in locating and bribing P-0613 for her to withdrawal as a prosecution witness.
iv) P-800
P-800 was to testify as a prosecution witness in the case against Ruto and Sang; however, he cut off communication with the ICC for some months. However, the witness began cooperating with the prosecution and testified in November 2014.
In 2013, P-800 was promised money to withdraw as a witness in the case against Ruto and Sang. P-800 met with Gicheru, who pledged to pay him two million Kenya Shillings at the time.
Gicheru facilitated P-800 travel to meet with P-495 and convince him to meet with Gicheru.
A year later, Gicheru took P-800 to a law firm, introduced him to the lawyers. He signed an affidavit without reading the document out of fear of the consequences. He was later contacted to sign an affidavit to withdraw from the case, which he also signed without reading.
Analysing the credibility provided by witness P-800, the Single Judge believes that the witness’ statements concerning the efforts to prevent witnesses from testifying can partly be relied on as it is supported by other evidence, including documents and audio material.
v) P-495
When testifying before the Court in the main case, Ruto’s and Sang’s case, P-495 disowned his previous statement stating that a Prosecution investigator had prepared two statements for him. After dismissing one of the statements, the investigator made changes to the second statement adding his details, and paid him to sign the statement.
Analysing the credibility of P-495’s testimony, the Court said that it did not solely believe his testimony and that the Office of the Prosecutor could have scripted his testimony and bribed him to deceive the Court.
However, the Single Judge is convinced that P-495 had told P-800 that he had met with Gicheru, who had promised him some money. P-495 also revealed to P-613 that he had been given 2.2 million Kenya Shillings.
P-495 further told P-800 that lawyers would coach him before testifying in Ruto’s and Sang’s case so that P-800 incriminates P-613, citing that he was cooperating with the Prosecutor because of money, and this is what P-495 told the Court when he testified in the Ruto and Sang case.
Vi) P-536
P-536 was severally contacted by telephone to convince her to withdraw as a witness in the case against Ruto and Sang.
In two conversations, she was promised money. In one instance, she was told that she would receive 1.4 million Kenya Shillings in cash. In the second conversation, the money was increased to 1.6 Million Kenya Shillings, with the contact stating that it was to assist her to “ start a new life.”
The person whose name is redacted said that a lawyer would help her withdraw as a prosecution witness. When she questioned how she could trust the lawyer, the person replied that Gicheru is a “real gentleman.”
Additionally, several witnesses mentioned Gicheru’s name in contacting other targeted witnesses.
Vii) P-0341
P-341, a Kalenjin of Nandi Ethnicity, was approached thrice during meetings organised by the ICC and convinced to meet up with some people whose names have been redacted. Out of safety concerns, he finally met up with “ the elders” and a contact whose name is redacted, who then took him to meet Gicheru privately.
Gicheru asked whether he was a witness, and he responded that he was a victim. He asked P-341 to halt attending the meetings held by the ICC, and in exchange, they would give him a car, a farm, a plot in town, and Ksh 5 Million Kenya Shillings.
He also asked P-341 to meet with other prosecution witnesses and persuade them to withdraw as witnesses, especially P-274.
In May 2013, Gicheru paid him 500,000 Kenya Shillings. He later asked him to come and sign an affidavit in the presence of a lawyer, and he was told that it was for his withdrawal in the court process, stating that he had no evidence against Ruto. He also asked him to make a public statement about his withdrawal to the media.
He had also been asked to become a defence witness in support of Ruto, but it was not possible. In two events, he had been summoned by Gicheru, for he had discovered that he still attended the PEV victims’ meetings and was interacting with white people who were “spies for the ICC.”
Gicheru also told him to tell P-274 that he would receive 5 million Kenya Shillings if he brought another witness.
P-341 was later informed that Ruto was pleased with the affidavit and that he should be given five million Kenya Shillings. However, he received two million in total and was not given a car, farm, or a plot in town as promised.
Examining his credibility, the Court determined that despite P-341 participating in the process of trying to corrupt other witnesses, he was honest with regards to the money that he had been given and even provided bank statements to underpin his statement. Additionally, he gave a detailed description of why he missed a meeting with ICC investigators.
Viii) P-274
In the December 2007 elections, P-274 was a supporter of the Party of National Unity(PNU), and due to his party affiliation, he was attacked during the post-election violence. Later, he started attending PEV victims’ meetings.
In 2011, after the first ICC Prosecutor Luis Moreno-Ocampo made public the name of the six ICC suspects commonly referred to as “Ocampo Six,” P-274 began receiving threats and asked for help friend who put him in touch with a contact(whose name is redacted).
P-274 was given Ksh 30,000, which he used to relocate from where he was living.
After the 2013 elections, he began receiving threats again. He then met with P-341, who disclosed to him that Gicheru had given him Ksh 500,000 to stop providing information against Ruto and that he was to receive Ksh 500,000 more.
P-341 introduced P-274 to Gicheru, who made him an offer of Ksh 500,000 to withdraw from the main case(Ruto and Sang case) and guarantee his safety. Gicheru also revealed that he had bribed other witnesses to withdraw from the case.
Gicheru asked P-274 to give him the names of other prosecution witnesses and then gave him transport reimbursement.
Days later, he received a call asking him to meet Gicheru. However, he turned off his phone and did not go because he was afraid. When he switched on his phone, he received a threat from a different telephone number, and he cut off communication with Gicheru.
Analysing his credibility, the Court stated that P-274’s statement is detailed; he tried contacting ICC severally and provided names and specific details about them. Hence, his testimony can be relied on in Paul Gicheru’s case.
[1] https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/09-01/20-153-Red
