By NZAU MUSAU
WITNESSES relied on by ICC suspects at the confirmation of charges hearings last year proved counterproductive to their interests as judges either dismissed their evidence or used it to confirm prosecution claims.
The devastation caused by witnesses cut both-ways in the case against Uhuru Kenyatta and Francis Muthuara as well as the other against William Ruto and Joshua arap Sang. It was however more devastating in the Uhuru and Muthaura case.
President Mwai Kibaki and Comptroller of State House Hyslop Ipu's witness statements denying Mungiki link in the State-House meeting succeeded in proving a meeting with some “youth” did take place.
A list of visitors to State House on November 26th, 2007 provided by Ipu on behalf of Muthaura was found to be of “no assistance to the chamber in the determination of the matter” because two other youthful witnesses of Uhuru attested that it was not conclusive.
Ipu himself admitted that the list was not exhaustive leaving a room that other visitors of Mungiki affiliation as alleged by the prosecution could have been at State House on that day.
Ambassador Yvonne Khamati account that she met the president and Muthaura at a State House boardroom at around 10.00am of that day for about an hour did not help. Another Uhuru witness also claimed to have met the president together with others at around the same time.
“The Chamber is of the view that no conclusion could be drawn from these witnesses’ statements as to the unreliability of the evidence provided by Witness OTP‐4, since they seem to refer to a meeting other than that with the Mungiki mentioned by Witness OTP‐4,” the judges concluded.
More damaging was statement from another Uhuru witness who was a coordinator of “operation Kibaki again” who confirmed that he attended the State House meeting with others among them Maina Kang'ethe aka Diambo but as representative of “operation Kibaki Again”.
The judges said they had noted that the same individuals mentioned by this particular witness as members of “Operation Kibaki Again” were the same individuals whom Ocampo's witnesses “place in attendance of the meeting as representatives of the Mungiki.”
Moreover, the judges said different sources indicated that this lobby- Operation Kibaki Again, appears to have operated as a cover group for Mungiki activities during the election campaign. Yet another defence witness only labelled D12‐37 confirms his participation in the meeting.
“This witness also confirms that the same people mentioned by Witness OTP‐4 attended the meeting at
State House as well as the fact that Maina Kangethe Diambo was a member of the Mungiki at the relevant time,” the judges said.
Phone records of conversations tabled by two Muthaura witnesses to dispute that he called police commissioner Hussein Ali were doubted on the basis that Muthaura could have used another number since the number whose records they tabled was not registered under Muthaura.
“The Chamber does not find persuasive the statement of Beatrice Muriithi (D12‐42) that “Mr. Muthaura has only one mobile telephone”since it does not exclude the possibility of Mr. Muthaura using another phone number without the witness being aware of this and given the powerful position of
Mr. Muthaura vis‐à‐vis the witness,” the judges said.
Muriithi statement to the effect that Muthaura being a Meru could not have spoken Kikuyu or identify himself with Kikuyu community could not be believed as according to the court, evidence tabled before it had shown that Kikuyu and Kimeru are “mutually intelligible.”
Moreover Muriithi said she had never heard Muthaura speak Kikuyu. The judges said the fact that she has never heard him speak Kikuyu does not mean he is not able to speak Kikuyu.
Muthaura's witnesses from Nairobi club- one of the alleged venues of the planning meetings- did not help him. The staff would not provide the names of the people who had breakfast there because of their hotel policy on non-disclosure.
Government spokesman Dr. Alfred Mutua's testimony to Muthaura's alibi that he did not attend the Nairobi Club meeting was deemed “selective and speculative”. And so was the evidence by Muthaura's drivers and security.
“Indeed, the Chamber cannot accept the proposition that the two of them would always know Mr. Muthaura’s movements and activities,” the judges said. Two other witnesses who disputed that Muthaura made a call to former police boss also lost out.
Michael Kagika, an administrative officer in State House disputed there was no such a meeting at State House because no tents were erected for that purpose as claimed by the witnesses. He however told the judges that he arrived at State House in the afternoon of that day.
“Considering this and also the fact that the witness was not a high‐ranking officer, and thus it cannot be assumed to have been privy to everything which occurred at State House, especially in his absence, the Chamber considers that the statement of Michael Kagika (D12‐8) cannot have decisive force in the determination of the matter at issue,” the judges said.
The testimony of another Uhuru witness that the deputy PM was at a PNU affiliates meeting at KICC in the morning of 26th and later lunched with him at Intercontinental was dismissed because the individual did not “give clear indication of the source of his knowledge.”
Another of Uhuru's witnesses mixed up the date of Kibaki's swearing in ceremony between December 30 and 31, 2007 but the chamber excused him. It nevertheless said the witness was extremely vague on the timing of Mr. Kenyatta’s movements.
Turning on to the Ruto case, the oral and written testimony of former presidential escort commandant Samson Cheramboss and evangelist Reverend Kosgei was accorded a low probative value by the judges owing to their alleged prominent role in the planning of the violence.
Both when they appeared at the confirmation of charges denied ever attending any planning meetings with Cheramboss making a categorical statement that he had never met Ruto nor been at his house.
“Given the circumstances surrounding Mr. Cheramboss, in terms of his alleged involvement in the planning of the attack during the different meetings as one or more of the Prosecutor's witnesses testified, the Chamber considers that the probative value to be attached to his testimony is lowered,” the judges said in their Monday ruling.
They said the different witnesses had described in detail the active role played by Cheramboss during the various meetings within the alleged network.
With regard to Reverend Kosgei, the judges said the circumstances surrounding his alleged involvement in the chaos implies an interest in denying his presence in the meetings and therefore his evidence could be relied upon a lot.
“Moreover, Reverend Kosgei is reported to have made a derogatory speech during a planning meeting, passages of which are quoted in detail by Witness 8,” the judges said.
Consequently, the judges went on to believe the witnesses that the said preparatory meetings including the one held on April 15, 2007 and in which macabre oaths of slaughtered dogs were administered could have taken place.
Kosgey had told the court last year that Kalenjins fear oaths and that dogs are considered abominable animals are therefore not involved in Kalenjin ceremonies. Instead, he said rams were used in traditional sacrifices by the community.
Even this explanation would not convince them that the meeting did not take place: “The Chamber has already explained in paragraph 118 its position on the testimony given by this particular witness in the specific circumstances outlined above.
Accordingly, the Chamber does not consider that the asserted discrepancy between the references to dogs as the animals used during the 15 April 2007 meeting and the testimony of Reverend Kosgei in that regard is of such a nature as to invalidate the credibility of the testimony of Witness 8 in relation to the 15 April 2007 meeting,” they said.
Kosgey's derogatory meeting alleged delivered at a speech he made in September 2, 2007 and given as testimony by witness 8 was considered too “precise and detailed” to be denied by the clergyman whose evidence was already doubted.
Cheramboss is cited by several witnesses as having played a significant role in the planning meetings including hosting one of the meetings.
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