The cases filed by President Uhuru Kenyatta’s lawyer, Mr Steven Kay, against two mobile phone companies touch on the charges his client is facing at the International Criminal Court, it emerged on Tuesday.
The confidential petition is meant to obtain information about key witnesses that ICC Prosecutor Fatou Bensouda is expected to rely on when the trial against Mr Kenyatta opens on November 12, 2013.
The petition is meant to obtain court orders compelling the two companies — Safaricom and Airtel — to provide communication details of the witnesses, including logs showing the people the witnesses have been calling and texting since 2008. It is also seeking details of their M-Pesa and Airtel Money transactions.
The data is meant to help Mr Kay and his team to respond to the arguments by Ms Bensouda that people close to Mr Kenyatta have threatened witnesses.
On Tuesday, Mr Kay’s lawyer, Mr Ken Ogeto, said the court session was held in camera to avoid details of witnesses and victims being made public.
“The proceedings were permitted to be filed confidentially after the applicant established appropriate legal basis in order to protect the identity of witnesses and victims in the ICC case against President Uhuru Kenyatta,” he said in a statement to the Nation.
Eleven days ago, Ms Bensouda dropped three witnesses she had lined up against Mr Kenyatta saying they were no longer willing to testify because they feared for their security. Ms Bensouda said Witnesses 5 and 426 had refused to testify against Mr Kenyatta due to the risk it carried.
She said Witness 5 had expressed fear for his life and cited three incidents, which were heavily redacted in the filing, as the reason behind his change of heart. She said the incidents occurred on April 2010, December 2011 and March 2013.
“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. In sum, it appears that Witness 5’s concerns for his security have become too great for him to bear, and he has decided to withdraw,” Ms Bensouda said at the time.
According to her, Witness 426 also changed his mind, saying testifying would pose a danger to his family.
In May last year, Ms Bensouda told a special Pre-Trial Chamber sitting that Witness 4 — who she later dropped — had confessed to accepting money last May from Mr Kenyatta’s alleged emissaries to withdraw his testimony.
“Witness 4 revealed in a May 2012 interview that he had been offered, and accepted, money from individuals holding themselves out as representatives of the accused to withdraw his testimony against Uhuru,” Ms Bensouda had told the judges hearing the case.
“The witness provided e-mails and bank records that confirmed the bribery scheme. In light of these cumulative revelations, the prosecution considers it is not useful to call him as a witness.”
On Tuesday, in line with the confidentiality of the application, the High Court decided to hear Mr Kay’s petition behind closed doors.
Mr Justice Isaac Lenaola, a Constitutional and Human Rights Division judge, directed journalists and the public to leave the courtroom at around 9.30am for the confidential hearing.
Reports of the confidential petitions on Tuesday drew varied reactions from Mr Ogeto, the Judiciary and a civil society activist.
Mr Ogeto said the proceedings were not secret.
“The law provides for confidential filings and not ‘secret’ ones,” he said. “There is nothing extraordinary about the confidential filing as Kenyan law including the Witness Protection Act, the International Crimes Act and the Rome Statute permit such filings.”
He also said the ICC routinely permitted confidential filings for the same reason.
The Chief Registrar of the Judiciary, Mrs Gladys Shollei, also defended the “in-camera” hearings.
“This practice is not limited to our judicial system or to the common law jurisdictions but is practised by other international tribunals,” she said.
Information on the confidential suits will be released to the public at the end of the cases and only if it does not affect the integrity of the ongoing trials at The Hague, she said in a statement to the Nation.
But activist Ndung’u Wainaina of the Centre for Policy and Conflict opposed the case.
“The ‘secret’ petition against publicly-listed communication company Safaricom and another private company Airtel is unacceptable,” Mr Wainaina, the centre’s executive director, said and vowed to oppose the cases and their outcome in court.
However, a statement from the President’s Strategic Communication Unit, criticised Mr Wainaina and said the cases were within the law.
“The petitions, against Safaricom and Airtel, touch on the cases at the ICC and were filed by President Kenyatta’s lawyers,” the statement said.
“The President and Deputy President have a right to use all available legal avenues to prepare their defence adequately before commencement of the ICC hearings.”