Mungiki insider and gender expert set to testify in Uhuru case

ICC judges on Wednesday allowed the prosecutor to add two more witnesses in the case against President Kenyatta with one of the new entrants being a Mungiki insider and the other a gender violence expert.

The Trial Chamber judges also rejected Mr Kenyatta’s legal team’s request to postpone the trial by four months in the event that the two additional prosecution witness are brought on board.

The judges had argued that Prosecutor Fatou Bensouda had promised to use the two witnesses after January 2014.

Judges Kuniko Ozaki, Robert Fremr and Chile Eboe-Osuji ruled that the Mungiki insider who is Witness P-548 and a sexual and gender-based violence expert, P-66, will bring new dimensions to the case facing Mr Kenyatta, whose trial is scheduled for November 12.

QUESTIONS AT ISSUE

“The Chamber is persuaded from P-548’s witness statements and the prosecution’s submissions that much of the proposed evidence of P-548... brings to light previously unknown facts, which have a significant bearing on the case and would be of relevance in determining the questions at issue in this case,” they ruled on the Mungiki insider.

On the sexual violence expert, the judges agreed with the prosecution that it was a replacement of another witness, P-426, who withdrew from the case under unexplained circumstances.

“The Chamber is satisfied that Witness 426’s withdrawal means that P-66’s proposed evidence brings to light otherwise unknown facts, which have a significant bearing upon the case. Further, given the overlap P-66’s proposed evidence has with that of former Witness 426, the Chamber considers that the Defence has previously had an opportunity to prepare for similar evidence in this case,” they ruled.

However, the judges instructed Ms Bensouda to disclose the identity of the two witnesses to Mr Kenyatta’s lawyers and directed that they be among the last to be called to the witness box to testify in the case arising from the 2007/8 post election violence.

“The Chamber orders the prosecution to disclose the identities of Witnesses 548 and 66 and all disclosable information relating to them forthwith and directs the prosecution to call Witnesses 548 and 66 among the last witnesses of the prosecution case,” they ruled.

The judges were alive to the potential linkage of the evidence from Witness 548 to the statements of other Mungiki witnesses and gave in to the request by the defence team made of Steven Kay and Gillian Higgins to push forward their testimonies.

They said: “The prosecution is also directed not to call any of its Mungiki witnesses until at least the end of January 2014. If the prosecution considers that the security situation for any of its Mungiki witnesses requires a variation of this direction, it is directed to seize the Chamber with an application to this effect.”

Wednesday’s ruling comes at a time when a cloud of uncertainty surrounds Mr Kenyatta’s attendance of his trial at The Hague.

Two weeks ago, the African Union asked him to skip the trial as they engage the UN Security Council to defer the cases the President and his deputy, Mr William Ruto, are facing at The Hague.

A team of five ministers has been nominated by the African Union to push for the deferral at the Security Council. AU commission chairperson Nkosazana Dlamini-Zuma and Ethiopia’s Foreign minister Tedros Adhanom who chairs the AU Executive Council will lead the team.

MASSIVE INTERFERENCE

The Trial Chamber has already allowed Mr Kenyatta to skip most of the proceedings except the opening and closing statements of all parties, judgement and sentencing, if it will apply.

Two weeks ago, Mr Kenyatta’s defence team wrote to the Trial Chamber seeking to stop his case on grounds that the prosecution had abused the court process, making it difficult for Mr Kenyatta to get justice.

They claimed to have evidence of massive interference in the court process by the prosecution intermediaries and its witnesses citing prosecution witnesses OTP-118, OTP-11 and OTP-12.

“The Defence is in possession of substantial evidence of a serious, sustained and wide-ranging abuse on the process of the Court carried out by Prosecution witness OTP-118 and prosecution intermediary, and Prosecution   witnesses OTP-11 and OTP-12,” said the defence team.

Should the Trial Chamber turn down their request, Mr Kenyatta’s lawyer registered another prayer of the judges ordering evidential hearing before the start of the trial to determine the issue of abuse of process.