Any keen observer of the Kenyan cases at the International Criminal Court must have witnessed with great interest as Muthaura’s lawyer Karim Khan in his characteristic and dramatic style raise concern over use of intermediaries by the prosecution. US-based Kenyan law professor Makau Mutua was a center piece of his observations which were clearly distant from the day’s agenda but which aroused the interest of the judges.
Khan says that Makau’s writing he has displayed “a very worrying and troubling trend in this case and appears as a friend to the prosecution.” He is questioning how Makau authoritatively talks about prosecution witnesses and evidence and yet he is not party to the case.
Having been allowed to make a formal filing of his complaint, Khan has been given an opportunity that may see not only Makau but a large group of NGO operatives having to answer hard questions. These NGO operatives helped Ocampo identify witnesses and some have even been accused of coaching the witnesses.
During a recent visit to Kenya, ICC spokesman Fadi el Abadallah revealed that witnesses who are found to have lied or intermediaries who would have facilitated false witnesses could find themselves in jail for up to five years.
When Congolese rebel leader Thomas Lubanga guilty, 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.
Khan is now questioning if Makau was one of Ocampo’s intermediaries in Kenya. And he is not the first to ask this since it emerged that Makau had, according to a journal at his place of teaching (Buffalo Law School), in March 2010 traveled to The Hague to provide week-long training to ICC lawyers and investigators “on Kenyan constitutional history, politics, and ethnicity.”
Instructively, Makau carried out his training one week before the ICC gave Ocampo the authority to investigate Kenya’s post-election violence.
But it is even Makau’s writing in Kenyan newspapers that have aroused interest in how much he knows about the ICC case and the prosecution witnesses – more than the accused and their lawyers know and yet they are party to the case. In April this year, a lawyer at the International Criminal Tribunal For Rwanda who questioned why Makau spoke with so much authority on a protected witness.
Defence Lawyer Tharcisse Gatarama in response to Prof Makau’s article titled, “How they tampered with Ocampo witness”, questioned the Professor’s level of privy to some of the details surrounding the Kenyans cases.
In his article, Prof Mutua said that he “can absolutely – and without equivocation – confirm that Mr (James) Kabutu was put under unbearably incredible pressure to recant his testimony to CIPEV (Waki Commission), and refuse to testify at the International Criminal Court.”
Mr Kabutu is allegedly Prosecution Witness 4 and his testimony to the Waki Commission had placed President Kibaki, Uhuru Kenyatta, and Francis Muthaura in an alleged State House meeting with Mungiki. A video made public by a Ugandan activist shows Mr Kabutu recanting his statement but Prof Mutua alleges he never did.
“I was shocked to learn that it was in fact two officials with the Kenya National Commission on Human Rights that forced him to “recant” his testimony at the Stanford Hotel. The two officials – a programme officer and a consultant – have since left the KNCHR,” Prof Mutua wrote.
In response to Prof Mutua, Mr Gatarama posed; “How is it that Prof Mutua is privy to such detailed and apparently confidential information? On what authority does he so confidently confirm that Mr Kabutu is indeed prosecution witness 4? Who told Prof Mutua that Mr Kabutu was bribed, threatened and subjected to other forms of coercion leading to the retraction of his evidence?”
Mr Gatarama went on to write that given the certainty and confidence with which Prof Mutua makes his conclusions then it would be that he either obtained this information from the witness himself or from the prosecution. “Is Prof Mutua an intermediary of the prosecution? Being an established lawyer of international repute, Prof Mutua would know of the unflattering manner in which ICC judges sometimes view the use of intermediaries,” Mr Gatarama wrote.
Khan has opened a tap that could wash away more than a single law Professor. A large number of NGO operatives have proven to be too aware of every move been made by the ICC, location of prosecution witnesses and even when ICC investigators come into the country silently. It remains to be seen if these individuals could be responsible for some of the alleged lies that the defence has been challenging during the pre-trial stage and now in trial.