The unexpected bow-out threw the prosecution into a spin as lawyers scrambled to prepare a new set of witnesses to kick-start the hearing.
Inquiries by the Sunday Nation have revealed that the three witnesses withdrew barely a week to the start of the trial, thus denying Ms Bensouda time to produce new witnesses immediately.
“The three were all crime-based witnesses with the knowledge of the planning of the Kiambaa church attack on January 1, 2008 that killed an estimated 35 people,” a source familiar with the withdrawals said.
The source said the prosecution was intent on starting the case with the Kiambaa church killings to offer a powerful beginning to the trial because the burning of the church shook the world and was reminiscent of the Rwanda genocide.
This, according to well-placed sources, was the approach the prosecution was keen on taking — that the Kiambaa attack was planned Rwanda style — to give the trial of Mr Ruto and Mr Sang a powerful, emotive start.
However, it turned out that the three witnesses had lied and further investigations were pointing to a scenario that the Kiambaa arson was the work of hooligans who could not be easily linked to Mr Ruto.
“The prosecution now believes that the attackers were mainly young men who seemed to have acted spontaneously ... it may not have been a planned assault,” the source said.
According to Ms Bensouda’s case plan, the first three were to be “insider witnesses” who had taken part in the crime but had taken a plea bargain only to withdraw just before the trial started.
This has forced the prosecutor to call witness number 536, said to be a woman who survived the Kiambaa church attack, as she seeks to build a “network” case against Mr Ruto.
The witness is described as “dual status” because she is both a victim and a witness, which means she may be used by the prosecutor and the victims lawyer.
“Not all victims are witnesses and not all witnesses are victims,” the source said.
The second witness, Herve Maupeu, or witness P-464 as he is known, is a European-based expert who will provide the historical roots of the violence.
Impeccable sources say the change in strategy somehow weakens the prosecution’s case, with Ms Bensouda arguing that the initial witnesses she had in mind were bribed. Her statement at the opening of the trials confirmed as much.
“Many victims and witnesses have been too frightened to come forward. Others have given statements, but subsequently sought to withdraw from the process, citing intimidation or fear of harm. Worrying evidence, Mr president, has also emerged of attempts to bribe witnesses to withdraw or recant their evidence,” Ms Bensouda said in her opening statement before the trial judges.
She warned anybody found to have interfered with witnesses of dire consequences.
“These are serious offences under the Rome Statute and they carry hefty sentences upon conviction. The prosecution is investigating. We will get to the bottom of it and ensure that those responsible also face justice.”
Mr Anton Steynberg, the lead counsel for the prosecution, indicated that they would call in “22 victims and witnesses, common Kenyan people, who will describe the attacks” in the towns of Turbo, Kapsabet, Nandi Hills and five locations in the greater Eldoret area — namely Kiambaa, Langas, Yamumbi, Huruma and Kimumu.
But at the rate witnesses are recanting their statements, there are fears that the figure could further be reviewed even though the judges last week allowed Ms Bensouda to add two new witnesses after the three withdrew.
An ICC insider said the mood in the office of the prosecutor was a manifestation of panic over what would become of the ICC in general if the cases did not go well. “If these cases fail, part of the credibility of the ICC is at stake.”
The source, however, cautioned the defence against premature celebrations but conceded that the rate of witness withdrawal in the Kenyan cases was unprecedented.
“It’s not over yet. It’s not new to them. They will try to get back. They have had similar setbacks in the past but not of this magnitude. Earlier cases were smaller and simpler. They have not seen withdrawals of this nature.”
The lawyer added that although the prosecutor may not have the kind of evidence she would have desired, the case may still be “dangerous”. “At the ICC, you can be convicted even on a shred of evidence.”
The trial of a sitting deputy president or a high ranking official of a State Party to the Rome Statute was watched by many. No wonder the adjournment came as an anti-climax.
Critics of the prosecution case have questioned how a case, which began in March 2010 when Ms Bensouda’s predecessor Luis Moreno-Ocampo initiated investigations into the 2007/08 post-election violence, would be adjourned on such grounds.
Tharaka Nithi Senator Kithure Kindiki, who was at one time part of Mr Ruto’s defence team, described the adjournment as “an initiative gone sour”.
“The former prosecutor began by putting forward a fictitious case and this case will come tumbling down like a house of cards,” said Prof Kindiki.
The cases, he said, lack three key ingredients — namely the facts, the evidence, and that the applicable law does not support the allegations.
“She doesn’t have facts. If wearing the elders’ hat or being crowned an elder makes one a warrior then all Kenyan politicians should be at The Hague. You cannot cook facts even in a kangaroo court,” he said.
Ms Jeniffer Shamalla, another critic of the case, and founder of the National Conservative Forum, wondered what the reaction of the prosecution would have been had the suspects skipped the trials. Ms Shamalla’s organisation went to court about three weeks ago to stop Mr Ruto and President Kenyatta from going to The Hague to stand trial.
A different school of thought, however, is that the adjournment is not a case of unpreparedness but simply a tactical retreat by Ms Bensouda. “The prosecution realised the other side was ahead in the propaganda war. It is a strategy to take back the mantra from the defence because you realise that these cases are taking place at two levels — the political arena and inside the court,” a Nairobi lawyer, who heads an international non-profit organisation promoting transitional justice, said.
- Daily Nation
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