ICC Chief Prosecutor Fatou Bensouda has audio recordings of what she alleges is evidence that individuals who claimed they acted on behalf of President Uhuru Kenyatta attempted to bribe prosecution witnesses. Bensouda claims efforts to locate the witnesses, identifi ed as P-0011 and P-0012, to persuade them to withdraw their evidence began days after the prosecution disclosed their identities to the defence in August, last year. Subsequently, the prosecution recorded telephone conversations between witness number 12 and a person claiming to be Uhuru’s emissary.
The alleged conversations were recorded with the consent and assistance of the witness in September and October, last year, Bensouda says.
Her office also has records of telephone conversations between the witness and his family members, including his brother and mother, who claim to have been contacted by the man claiming to be Uhuru’s associate.
On January 4, this year, the prosecution disclosed 11 of the recordings to the defence and the contents were summarised as: “ (Redacted) seeks to persuade witness 12 to meet to discuss the amount of money to be given to resolve the case. (Redacted) indicates that Mr Kenyatta was informed of the scheme and wanted to avoid direct involvement because he was concerned about getting caught tampering with evidence.”
But translations of the conversation by Uhuru’s defence are different from the prosecution’s. In addition, Uhuru’s lawyers have also disclosed their own telephone conversations between the same witness and people whom Uhuru says are potential witnesses in the case against him at The Hague.
The defence has accused the prosecution of using the witness to intimidate and interfere with their own witnesses, which is the alleged illegal conduct the President’s lawyers have cited in the application urging termination of his trial.
The dealings with witnesses numbers 11 and 12, both of whom claim to have been Mungiki operatives, is the subject of sharp dispute between the prosecution and the defence.
The controversy has led to the application by Uhuru to have the case stopped by the Trial Chamber V (B) judges, an application that Bensouda has opposed, stating her version of events.
Bensouda makes the claims in documents she filed on Tuesday opposing Uhuru’s application.
The evidence of the two witnesses was crucial in confirming the charges against Uhuru early last year by the Pre-Trial Chamber.
But the contact between the two Mungiki members and Uhuru’s defence started way before they became prosecution witnesses, according to Bensouda’s documents.
The documents state that from March 2011, they were sending emails to Uhuru’s defence and intermediaries accusing them of not honoring an agreement to organise a meeting with the then Deputy Prime Minister.
They also introduced other alleged Mungiki members to Uhuru’s team as possible witnesses. They claim they had been promised by some alleged Uhuru associates that they would have a meeting with him to discuss their security assurance and payment, the documents say.
They state that the two were interviewed by Uhuru’s lawyers who told them that the promise to them to meet with he DPM had been made without his authority. They also told Uhuru’s lawyers that he had not been involved in the 2007/2008 post-election violence. It was after their mission to meet Uhuru failed that they contacted the Prosecution on March 28, 2011 stating they were ready to spill the beans on crimes committed by the PNU in the PEV. In June 2011 the prosecution screened and interviewed them.
“Both witnesses provided substantial incriminatory evidence and volunteered that they had previously given false statements to the defence,” Bensouda says.
Bensouda said the witnesses told them that they had agreed to play along with the defence to obtain security assurance in light of the extra-judicial killings targeting Mungiki members. Bensouda says that when the witnesses realised they would not meet Uhuru for a security guarantee and that a trap was allegedly being laid to kill them they decided to contact the prosecution.
One of the witnesses told the prosecution, “We got really scared and we decided to tell ICC as much as we know.” The prosecution only disclosed their identities to the defence on August 1, 2012.
It was two weeks after this disclosure that people claiming to be Uhuru’s associates contacted the families of the two witnesses for help to get them to withdraw their testimony, the prosecution says.
One of the alleged emissaries allegedly told the family of witness number 12 that he had been sent by Uhuru to find out how much money the witnesses wanted for the case not to proceed, Bensouda claims.
The emissary had left a telephone number with the family for the witness to call back. But when the prosecution organised for a call by the witness the number went unanswered throughout August 2012.
Bensouda says the prosecution used to record the telephone conversations with the undisclosed person and the family members. She says the family members confirmed to the prosecution that they had been contacted by persons claiming to be Uhuru’s associates. The documents say the family members informed the witness that a meeting had been organised between them and Uhuru.
Bensouda says the prosecution monitored the telephone call to determine the scope of the bribery scheme. The conversations were in Kikuyu and the witness would summarise them to the investigators.
The undisclosed person held himself as acting on behalf of Uhuru. He offered him money and other benefits to withdraw his evidence, Bensouda states. The conversation transcripts and translations were then disclosed to the defence in January and February this year. Other conversations between the witness and his family members were also facilitated last month by the prosecution. Uhuru’s defence, however, accused the prosecution of interfering with the collection of defence evidence.