The President’s defence team argues the 15 Mungiki members are ‘self confessed criminals’ and the prosecutor should turn over the evidence to Kenyan authorities so they can face the full force of the law.
Bensouda had asked the three judge bench to grant the Mungiki courtroom protective measures, including voice and image distortion, use of pseudonyms and in camera sessions for identifying evidence.
She has also asked the ICC judges to assure six of the witnesses that their self-incriminating evidence would not be used against them.
But Uhuru’s lawyers Steven Kay and Gillian Higgins have contested the demands saying they should testify in the open so that their lies are exposed in an application filed on Monday.
“The suppression of the identities and self incriminatory testimony of these witnesses would render the notion of a public trial farcical and would prevent the legitimate investigations, arrest and prosecution of key criminals responsible for post election violence and other crimes in Kenya by Kenyan authorities,” Uhuru’s lawyers argue.
Public hearing
Uhuru has asked judges to ensure the testimony of Mungiki witnesses is heard fully in public and that they are given no immunity from prosecution.
“Such measures constitute inducement to the identified witnesses to provide evidence to fit with the prosecution case and effectively grants immunity against prosecution for individuals who may either bear responsibility for acts of serious violence during post election violence or be falsely claiming to have committed such crimes,” his defence lawyers argued.
Uhuru’s lawyers say the prosecution relies entirely on 15 self-confessed criminals, either members or former members of the outlawed Mungiki sect, to state its case against the President.
In a new legal strategy, Uhuru maintained that evidence from the Mungiki witnesses is unique to the ICC since their criminal conduct was not captured in any report that inquired into the bloodshed that followed the bungled 2007 polls.
Their criminal undertakings were not cited in the Waki Report on the post election violence, the Kenya National Human Rights Commission Report and the prosecution’s case materials at the ICC, he argues.
“Therefore the only way Kenya can deal with the allegations of criminal conduct as alleged at the ICC is disclosure of the same to the Kenyan authorities,” Uhuru argues.
“The prevention of legitimate investigations by a State of serious crimes committed within the State as a result of the application of Rule 74 in the instant case would fundamentally contravene one of the reasons for the establishment of the ICC, namely the encouragement of States to investigate and prosecute criminals nationally,” adds the application.
Security concern
According to the Gambian born prosecutor, several top officials of the outlawed Mungiki sect were murdered after the post-election violence, a big security concern should their identities be disclosed.
She alleges the slain Mungiki officials were instrumental in the sects’ participation in the violence that rocked the country.
But Uhuru argues that denying the Kenyan authorities a chance to deal with the ‘criminal elements’ would contravene one of the reasons for the establishment of the ICC.
In the application, Uhuru appeared to discredit the ICC evidence saying the level at which the prosecution has relied on the testimony of ‘self confessed criminals’ is unprecedented.
Kay and Higgins say that during interviews with the prosecution, a number of the Mungiki witnesses confessed to having committed crimes.
They also say that defence investigations have unearthed crimes committed by the said witnesses, which are outside the ICC’s jurisdiction and the post election violence but which are relevant to the credibility of the said witnesses.
Citing illegal conduct by the prosecution, Uhuru, whose case is due to open on February 5, next year, has asked the judges to stop his trial altogether. Uhuru has cited “serious, sustained and wide-ranging abuse on the process of the court carried out by” three witnesses against him.
source: SDE
