Dwindling Witness List Threatens Case Against Kenyan President

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NAIROBI, Kenya -- Convicting a sitting president of crimes against humanity was never going to be a simple process, but the bumpy case against President Uhuru Kenyatta of Kenya has proved the challenges of such a prosecution.

The case against Mr. Kenyatta before the International Criminal Court in The Hague appeared to be on ever-shakier footing this week after two witnesses withdrew, at least one of them claiming safety fears as the reason, the prosecutor, Fatou Bensouda, said in a filing before the court.

Prosecutors held discussions with another witness, identified as Witness 426, "to determine whether any measures could be taken to mitigate his concerns and secure his attendance at trial," the filing said, without specifying whether those concerns were security related. "These talks were unsuccessful and Witness 426 maintained that he was not willing to testify."

Prosecutors have accused Mr. Kenyatta of using his extensive family fortune to finance death squads in the midst of the violence that broke out after Kenya's presidential election in 2007. Mr. Kenyatta has consistently proclaimed his innocence, asserting that the accusations against him are based on malicious gossip.

The details remained fuzzy as the court filing was heavily redacted, with one witness, identified as Witness 5, citing "insurmountable security risks for himself," as his reason for refusing to testify.

The latest setbacks for the prosecution have only increased speculation that Mr. Kenyatta will go free in the end. "Sorry folks, but the pace at which these I.C.C. witnesses are melting, I can be forgiven for wondering who will testify at The Hague," said an editorial on Friday in The Standard, a Kenyan daily.

More than 1,100 people are believed to have been killed in organized attacks that followed the disputed election of 2007. Mr. Kenyatta stands accused of crimes against humanity including murder, rape and forcible transfer.

"For the witnesses this situation is unheard of: you have a sitting president who controls the army, the police, the secret police," said an international lawyer closely following the trial who considered the matter too sensitive to speak on the record. "How could witnesses believe they can be safe?"

A lawyer for Mr. Kenyatta vehemently denied all accusations of witness tampering or intimidation on the part of the defense. "There is not a single scrap of evidence accepted by the judges that President Kenyatta has interfered with witnesses," Steven Kay, a lawyer for Mr. Kenyatta in his case before The Hague, said in an e-mailed response to questions. "The comments are made as part of a strategy to hide a weak case."

A third witness was dropped this week because the evidence was no longer needed, according to the filing. The prosecutor's office said Friday that 30 people remain on the witness list. Ms. Bensouda also informed the court that she would potentially add witnesses as the investigation continued.

Last month the trial was pushed back from July to Nov. 12 to give the defense additional time to prepare. "The witnesses have been under enormous pressure, the more time that goes by the greater the risks," said the lawyer following the case, adding that a number of witnesses have been taken out of the country for protection. "The prosecutor wanted the trial to start right away, if for no other reason than the safety of the witnesses."

In March, Ms. Bensouda withdrew charges against a co-defendant, Francis Kirimi Muthaura, a former government official accused of working with Mr. Kenyatta to organize death squads in the wake of the disputed election.

"What it says is that you can use your political and financial might to deal with the witnesses and dismember the case," said James Gondi, program adviser for Kenyans for Peace with Truth and Justice, a coalition of nonprofit groups. "There are mechanisms within the International Criminal Court to find out who is behind the intimidation and bribery."

Kenya's deputy president, William Ruto, who along with Mr. Kenyatta still faces charges, has called the cases against them a "conspiracy of lies." According to Mr. Kenyatta's lawyer, Mr. Kay, the defense has "evidence of the bulk of the witnesses being supplied by political opponents."

This week, Mr. Kenyatta celebrated his 100th day in office. With his election in March, he became the second sitting head of state in Africa facing a major case before the International Criminal Court. President Omar Hassan al-Bashir of Sudan stands accused of fomenting genocide in Darfur. Mr. Bashir has refused to appear before the court. He recently left a summit meeting in Nigeria prematurely after human rights activists filed a lawsuit seeking his detention.

Kenya remains an ally of the United States in the fight against terrorism and Islamic extremism, but the relationship has been seriously complicated by the I.C.C. case. President Obama skipped Kenya, his father's birthplace, on his recent trip through Africa.

The trial has attracted a great deal of public attention in Kenya, much of it negative. Supporters of Mr. Kenyatta deride the case as politically motivated, attacking the court and the prosecutor as biased.

"Some public officials in Kenya have fostered an anti-I.C.C. climate in the country, which has had a chilling effect on the willingness of potential witnesses and partners to cooperate," Ms. Bensouda said in a written submission on May 10.

In this week's filing, she wrote that "there has been public speculation about Witness 5's cooperation with the court, despite the fact that the prosecution has designated his identity as confidential," the filing said.

Ms. Bensouda has expressed worry about the intimidation of witnesses for months. In an interview in April, she said: "The safety of the witnesses is one of the greatest challenges we face in the Kenya cases. There has been unprecedented intimidation. It's a very difficult situation. We take this very seriously."

She also complained that the Kenyan government had insufficiently cooperated with the investigation, which it is bound to do as a full signatory of the court. In the interview she said that the government had ignored repeated requests from her office for financial records related to the investigation and she had been refused access to police officers who were on duty during episodes of violence.

In the written submission in May she informed the judges that she had received reports from witnesses that officials had sought to influence their testimony.

"If it's not addressed we will see it in future cases before this kind of tribunal," said Mr. Gondi, the Kenyan activist. "What it does is it reinforces impunity."

world

This article originally appeared in The New York Times.


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