Kenya has made a last minute appeal to ICC to defer a proposed amendment that would see statements of dead witnesses introduced at ICC trials.
President Uhuru Kenyatta
The government is also in the process of setting up a team of special investigators to deal with pending Post Election Violence cases, Director of Public Prosecutions Keriako Tobiko said in The Hague yesterday.
He said 5,000 pending PEV cases have already been refereed back to the police for fresh investigations. He says the new team will work with the police and and the International Crimes Division of the High Court that will start up early in the new year.
Kenya’s ambassador to Netherlands, Makena Muchiri, wrote last Friday to the president of Assembly of State Parties Tiina Intelmann seeking postponement of debate on Rule 68 of the Rules of Procedure and Evidence.
The amendment will give the prosecution more room to introduce prior recorded testimony during trial of an accused, including from the dead. It has already been discussed and accepted by several ASP committees.
Many Kenyans who knew about the post election violence have died although it is not known whether they had recorded statements with the ICC.
They include former Juja MP George Thuo; former ministers Mutula Kilonzo, John Michuki and George Saitoti; former police boss Bernard Kimeli; and Mungiki leaders Maina Diambo, Charles Wagacha, George Wagacha, Alfred Njoroge and Naftali Irungu.
The amendment wants to include three new grounds for introducing prior recorded evidence: where the recorded evidence proves something other than the acts of the accused; where prior recorded testimony is from a person who subsequently died; and where the recorded testimony comes from a person who has been subjected to interference.
In an opinion attached to Muchiri’s letter, Kenya said that the “most catastrophic consequence” of the amendment is that evidence would be admitted without the “all-important safeguard of cross-examination.”
Kenya argued that Article 69 of the Rome Statute underscores the importance of oral evidence in the ICC trials. It said the amendment proposal “fundamentally undermines” those provisions.
“Although the working group suggests that the proposed rule would benefit both Prosecution and defence the reality is that these kind of amendments are almost invariably geared toward facilitating prosecution work at the expense of fair trial rights,” Muchiri argued.
Muchiri objected to allowing dead persons’ statements arguing that it is not clear how the court would differentiate between a dead person and someone who “simply goes into hiding.”
Muchiri also complained about allowing prior recorded evidence where a witness has been subjected to interference. Kenya argued that this would open the floodgates of abuse in the presentation of evidence at the ICC. Kenya said there does not seem to be a clear threshold for determining what constitutes “interference” by “supporters of the accused.”
“This could result in evidence being introduced which tends to incriminate the accused, without an opportunity for cross-examination, even when the credibility of that incriminating witness has been undermined because he has accepted a bribe or become recalcitrant as a result of an inducement or a threat,” Muchiri argued.
Muchiri said the proposed amendment would lead to the risk of over-reliance on “fabricated and stage managed evidence collected within a highly polarized political contexts.”
Kenya recommended ASP members to “be alive” to the risks of eroding the rights of the accused and providing the prosecutor and “potentially compromised intermediaries with such a dangerous weapon.” Kenya wants the ICC to first obtain “well-considered perspectives” from the defence before proceeding with the amendment.
By NZAU MUSAU and MATTHEWS NDANYI, The Star
