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THE ICC, UHURU KENYATTA, FATOU BENSOUDA, AND THE MYSTERIOUS CASE OF WITNESS ‘OTP-4’

Law journalist Joshua Rozenberg

This is an edited version of an article by legal journalist Joshua Rozenberg that originally appeared in the British newspaper The Guardian on February 7 under the title, ‘ICC case against Kenya’s deputy PM proceeds despite claim that witness lied’.

LONDON LAWYER – ICC PROSECUTION WITNESS ADMITS LYING

The prosecutor of the international criminal court [Fatou Bensouda] seems to be in no mood to review the case against the deputy prime minister of Kenya, Uhuru Kenyatta, despite a claim by his London-based QC that the prosecutor had acted in bad faith by bringing a case against his client based on fraudulent evidence.

Steven Kay QC told the court that a key prosecution witness had admitted lying and that Kenyatta’s case should be referred back to alower tribunal to “avoid a serious miscarriage of justice”. But, without addressing the specific points raised by Kay, Fatou Bensouda told the court that the conditions in the summons issued against Kenyatta were “adequate for the purpose of trial”

QC Steven Kay

BENSOUDA TAKES OVER FROM OCAMPO

Bensouda became the court’s senior prosecutor last summer, taking over from her former boss Luis Moreno-Ocampo. He achieved just one conviction during his nine years in office, and was frequently overruled by a trial chamber headed by the British judge Sir Adrian Fulford.

Charges against Kenyatta and the Kenyan cabinet secretary Francis Muthaura were confirmed by a pre-trial chamber at the ICC last year, although the court threw out charges against another defendant, former police chief Mohammed Hussein Ali.

‘WITNESS OTP-4’ CLAIMS MEETINGS WITH MUNGIKI

Subsequently, defence lawyers were shown statements made to the pre-trial chamber by a witness referred to as OTP-4. His evidence was that he had been a guest of Kenyatta at a meeting in State House, Nairobi, on 26 November 2007. OTP-4 said he had been there as a representative of the Mungiki, described as a secretive mafia-like gang of organised criminals inspired by Kenya’s Mau-Mau fighters.

OTP-4 ADMITS LYING

Kay told the court in a written submission: “After the confirmation hearing, on 25 May 2012, OTP-4 resiled from his evidence and admitted he had lied and was not

ICC Chief Prosecutor Fatou Bensouda

present at the meeting as alleged. OTP-4 has also admitted lying about another meeting at which he alleged he was present with Mr Kenyatta and Mungiki personnel on 17 November 2007.”

STATEMENT KEPT FROM DEFENCE LAWYERS

Kenyatta’s defence lawyer noted that the prosecutor was no longer listing OTP-4 as one of her proposed witnesses. At the pre-trial hearing she had also been relying on his evidence to establish that Kenyatta and Muthaura had met Mungiki members at a key planning meeting in January 2008. The witness had admitted in 2010 he was not present at the meeting but his statement was kept from defence lawyers for two years and not disclosed until after the confirmation hearing.

Kay accused prosecutors of misleading the pre-trial chamber in order to strengthen its case and prevent defence lawyers from having access to “significant exculpatory evidence necessary for the proceedings”. If the chamber had known this at the time, Kay continued, it would not have confirmed the case for trial. He asked the trial chamber to refer the case back to the pre-trial chamber for reconsideration and to “reprimand the prosecution for acting in bad faith”.

In response to media requests on Wednesday, Bensouda’s office said that preparations for the trial were continuing. The proper channel for responding to submissions by any party was through the court and not the media, it added.

‘PROSECUTORS MUST ACT IN GOOD FAITH

Since much of the evidence in the case has been disclosed to the defence on a confidential basis, it is impossible for outside observers to assess the importance of OTP-4’s evidence. For all we know, he may be one of several witnesses on whom the prosecution could rely to prove their case.

But that is not the point. Prosecutors must act in good faith. Moreno-Ocampo did not seem to understand his duty to disclose exculpatory evidence until it was explained to him by the court. Bensouda has inherited this case, along with many others, from her predecessor. If Kay’s allegations of bad faith are made out, Bensouda should distance herself from an approach that did great damage to the court’s reputation in its first decade.

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