In affidavits filed at the High Court in Nairobi Monday, two individuals who withdrew as prosecution witnesses in the case against Ruto, detail alleged unorthodox means used by International Criminal Court (ICC) investigators to gather evidence.
The investigators work under the Office of the Chief Prosecutor, Fatou Bensouda.
Mr Simon Kipkolum Rotich claims he was jailed for a year in a Dutch prison after he fell out with ICC officials. And Mr Samuel Kimeli Kosgei claims Dutch authorities took his children away from him.
The two have accused the ICC of “oppression” and “injustice”, and in sworn affidavits have expressed their apprehension should journalist Walter Barasa be extradited to The Hague-based court. The affidavits are in support of Barasa’s fight against extradition to The Hague court.
They argue that their separate experiences in the hands of ICC prosecutors and other officials were enough proof that Barasa’s case would not receive a fair hearing at the court.
Rotich gave a detailed chronology of events that he claims informed his decision to withdraw as an ICC witness. He says he was coached to give evidence before he decided to withdraw as a witness.
Rotich claims that he recorded a statement with the Kenya National Commission on Human Rights (KNCHR) in early 2008 that he later learnt was presented before the Justice Philip Waki-led commission into the post election violence.
Subsequently, Rotich says, around February 2010 he entered the Witness Protection Programme run by the KNCHR, which rented an apartment for him at Kilimani, Nairobi.
KNCHR facilitated his travel and hotel accommodation in Dar-es-Salaam where he met an ICC official known as Kebba Khan on July 8, 2010, when he officially became a protected witness.
“Whereas I had been promised by officials of the KNCHR that my sons will be admitted to good schools in Tanzania, the ICC did not honour this agreement during our six months stay in Dar-es-Salaam,” Rotich claims. “I told the representatives of ICC that I wanted to withdraw as a witness on account of their failure to admit my sons to school but they told me that they will be admitted to good schools in Europe.”
He says that the ICC flew him to the Netherlands in January 2011, but by April, his sons had not been admitted to school. They were later admitted to a Dutch school though he had been promised they would be enrolled in an English school.
“My children remained in the Dutch school until July 2011, when I refused to co-operate with the ICC as detailed below. My children were not in school between July 2011 and September 2012,” says Rotich.
Under duress
Rotich has reiterated his initial claims that the statements he gave to ICC investigators before the trial commenced were false and were procured under duress.
He claims that he, together with members of his family were threatened by the ICC and asked to co-operate with the court. Among those he accuses of influencing his decision to sign the statements was Ms Cynthia Thai, one of the ICC prosecutors.
“She said my family and I would be evicted from the house that ICC had rented for us and I would not be given money to live on and my medication would not be paid for. Upon reflection, I decided to co-operate to avoid further hardship to my sons and I,” he states in the affidavit.
Rotich also claims that between 2011 and 2012, he suffered at a Dutch pre-detention facility in the Netherlands run by the ICC following a scuffle with an ICC official. He says his detention was meant to intimidate him and that he underwent severe mental and physical anguish in the hands of the prison authorities before he was released a year later.
Kosgei alleges that ICC organised meetings in various hotels in the Dutch capital during which its officials prodded him to sign statements implicating the Deputy President and radio journalist Joshua arap Sang in the 2008 post-election skirmishes. He states that his refusal to sign the statements led to the Dutch authorities denying him custody of his children.
“I was charged in court with the offences of mistreating my children. The court found that I was irresponsible and ordered that my children be taken away by the Child Care Services, the Netherlands,” he states. “A lawyer working with the OTP known as Cynthia Tai called to tell me that if I accepted to sign the altered statement I had previously refused to sign, ICC would help me to get back my children,” he claimed.
He claims that the ICC reneged on various promises they made to him, and also confiscated his official personal documents.
The two affidavits were filed by Barasa’s lawyer, Kibe Mungai, as part of attempts by Barasa to convince the court that there are exceptional circumstances that warrant the referral of his case to the Chief Justice.
In the affidavits of the former ICC prosecution witnesses, they argue that their separate harrowing experiences in the hands of ICC prosecutors and other officials was enough proof that Barasa would not receive a fair hearing at the international court.
Barasa is challenging extradition proceedings against him that are set to commence on November 11. Justice Richard Mwongo on October 18 directed the State to make a formal application for Barasa’s arrest warrant.
The proceedings for the arrest warrant have been shrouded in a legal maze since the ICC accused Barasa of influencing ICC witnesses and asked for his transfer to the Hague-based court to face criminal charges.
The two in their affidavits say they regret their decision to present themselves as ICC witnesses.
“A suspect such as Mr Barasa, who appears to have provoked the wrath of the OTP, will be subjected to untold suffering if this Honourable Court were to authorise his arrest or surrender to the ICC,” Kosgei states.-standardmedia
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