The ICC is quietly compiling evidence of witness tampering in the collapsed cases against Kenya’s top leadership in a move that may resuscitate The Hague narrative ahead of the August election.
The Star has established that a team of eight ICC sleuths is in Kenya to collect and collate evidence of what they believe was massive witness interference in the now-defunct cases against President Uhuru Kenyatta and Deputy President William Ruto.
The team is also in the country to monitor top political leaders, including those who were not indicted in the now-collapsed Kenyan cases. Impeccable sources said the ICC agents have been in the country since November.
They are largely drawn from Tanzania and Rwanda and speak fluent English and Kiswahili. In both high-profile cases, ICC Prosecutor Fatou Bensouda indicated that she could press for new charges, decrying political meddling, lack of cooperation and witness interference.
Already, three Kenyans - journalist Walter Barasa, lawyer Paul Gicheru and Philip Kipkoech Bett - have been slapped with arrest warrants for witness tampering in the Ruto case.
Yesterday, ex-defence lawyers in the crimes against humanity charges cases confirmed the presence of the ICC investigators in the country.
“They are in the country and are investigating claims of witness tampering. I have met some of them,” said one of the lawyers, who, however, declined to be identified.
Withdrawing Ruto’s case, Bensouda said the judges have not blocked her office from pursuing Ruto and journalist Joshua Sang “with the same charges in future, or in a different form in light of new evidence”.
Bensouda said 17 witnesses that had been lined up to testify were induced to pull out, dealing a blow to her case.
“Prosecution witnesses in this case were subjected to intimidation, social isolation and threats to prevent them from testifying,” Bensouda said on April 6, 2016. In the Uhuru case, Bensouda said tens of Mungiki insiders were killed in a strategic cleanup operation to eliminate key witnesses.
“Mungiki members said to have interacted with [President Kenyatta] in person during the PEV were killed or forcibly disappeared in an apparent cleanup operation after the violence.
The pretrial period was marked by attempts to bribe and intimidate key witnesses,” she told the judges.
She named Solicitor General Njee Muturi and Kabete MP Ferdinand Waitutu as among the powerful individuals who influenced her key witnesses to conceal Uhuru’s involvement in the bloodshed.
Other sources said that the eight ICC investigators now in Kenya are trailing, filming and tape-recording top politicians on the campaign trail.
Among their key targets are President Kenyatta, DP Ruto and opposition leader Raila Odinga.
They are said to be working closely with some civil society groups to conceal their mission and are keen on obtaining both video and audio recordings of key meetings.
When the 2007 post-election violence happened in 2007, the ICC did not have investigators on the ground in Kenya and relied on local NGOs.
The judges however demolished some of the evidence and accused the prosecution team of doing a bad job.
It remains unclear whether the ICC could also be gathering evidence for possible violence before, during or after Election Day August 8.
The Star called the ICC outreach co-coordinator to Uganda and Kenya, Maria Kamara, five times, but she did not answer our calls. We also sent SMSs, which she has not respond to since Friday.
On Friday, we also emailed ICC spokesman Fadi el-Abdallah but there was no response too.
Among the issues that the Star wanted to clarify is if the ICC was watching Kenya during the political campaigns into the next general election and a confirmation that the court had dispatched its investigators into the country.
In the 2007/2008 post-poll investigations, the ICC relied heavily on the reports of local human rights groups and government agencies such as the spy agency NIS and the National Police Service.
The report by the Justice Philip Waki probe – the Commission of Inquiry into the Post-election Violence (CIPEV) – was the backbone of the subsequently flopped investigations that led to the collapse of the Kenyan cases at the ICC.
ICC Chief prosecutor Fatou Bensouda during the 10th Anniversary of the ICC - Social Event at City Hall in The Hague, 13 November 2012 Photo/ICC
Human rights groups such as the Kenya National Commission on Human Rights were among the organisations that provided evidence to ICC investigators of events in the country before, during and after the disputed election.
Six Kenyans, among them Uhuru and Ruto, were charged at the ICC with crimes against humanity.
The other suspects were radio journalist Sang’, former police commissioner Hussein Ali, former Cabinet minister Henry Kosgey and former Head of Public Service Francis Muthaura. The cases against the six VIPs were all dropped by the court, across a five-year period.
The Star has learnt that, as a result of the renewed ICC investigators, Inspector General of Police Joseph Boinnet was advised to set up a special team that will monitor all top politicians during the election period. The rationale is to have the police top brass covered in the event the ICC re-opens investigations against Kenya.
Boinnet, who spoke in Garissa last week, announced that the police will crack down on hate mongers during the campaign period.
“The National Police Service will deal very firmly with anyone who breaches electoral or Public Order laws or any other law for that matter”.
“We will be very firm with any persons who incite others, hire goons or seek services from outlawed criminal groups,” said Boinnet.