ICC: Kenyan defendant seeks order on defence witnessesBy OLIVER MATHENGE | Tuesday, June 19   2012 at  14:07

Former head of Kenya's civil service Francis Muthaura has sought an order barring International Criminal Court prosecutor Fatou Bensouda from contacting his witnesses.

His co-accused Deputy Prime Minister Uhuru Kenyatta has supported the request that also wants the prosecution to disclose “a log of all direct and indirect contacts and attempted contacts between the Prosecution and potential Defence witnesses".

Mr Muthaura argues that the court must preserve “the security and well-being of potential witnesses as well as safeguarding the integrity of the proceedings” with respect to contacting opposing party witnesses. He added that the court’s system must be guarded from any appearance of witness intimidation, duress or inducement by the parties.

“The Defence does not file this urgent application as an academic exercise aimed at preserving legal cohesion in the jurisprudence of the Court,” Mr Muthaura through his lead lawyer Karim Khan said in Monday.

Mr Muthaura adds that any witness, whether on the defence or prosecution side, must consent to a meeting sought by either of the parties. He also tells the judges that the defence is best positioned to evaluate and address the security and other concerns of its potential witnesses, just like the prosecution is on its own witnesses.

“Defence witnesses have also been threatened. The Defence have reason to believe this threat – accompanied by monetary promises should the witness change and fabricate his testimony in a manner unfavourable to Mr Muthaura – resulted from the actions of persons linked to the Prosecution,” the document says.

Lubanga precedent

Mr Muthaura also says that while his lawyers are in the process of ascertaining the exact nature of the threat to his witness, it will be “a grave violation of the Prosecutor’s obligation under the Rome Statute” if persons linked to the Prosecution were responsible for the issue.

“Indeed, the Prosecutor’s actions – or lack thereof, if confirmed, constitute especially egregious misconduct given the stinging criticism of the Lubanga Trial Chamber of the Prosecution’s use of intermediaries in that case,” Mr Muthaura’s submission reads.

In supporting Mr Muthaura, Mr Kenyatta says that following Pre-trial Chamber II decisions in relation to their investigations, he understood that the jurisprudence of the ICC relating to contact with witnesses applied to all parties, including the Prosecution.

Mr Kenyatta also wants the prosecution to produce “items that record, summarise or otherwise reference the contents of any and all communications the Prosecution or persons affiliated with the Prosecution (such as intermediaries) may have had with potential Defence witnesses".

When Congolese rebel leader Thomas Lubanga was pronounced guilty of war crimes, the judges indicated that three prosecution intermediaries may themselves have committed a crime under the ICC Statute by potentially facilitating witnesses in giving false evidence. The individuals concerned are currently under investigations.