1,133 is not just a number

Paul Gicheru appearing before the ICC via video-link from the ICC Detention Centre on 6th November 2020. Photo credit: ICC-CPI

Gicheru prosecutor seeks to add materials connected to missing witness

18 November 2021 - 11:11

By Janet Sankale


The judge hearing lawyer Paul Gicheru’s case at the International Criminal Court has been asked to allow the prosecution to add the transcripts and translations of an enhanced audio recording of the statements of a witness who is not available to testify.

Deputy Prosecutor James Stewart explained that the newly registered transcripts and translations could not be completed in time to include in an application he had made on October 27, 2021, requesting to be allowed to introduce into evidence prior recorded testimony of Witness P-0397 because he is unavailable to give oral testimony, adding that the witness had been subjected to interference.

The prosecution had explained that P-0397 was a prosecution witness in the case of William Ruto and Joshua Sang and had provided information that was detrimental to Ruto, and had later stated that Gicheru and others had corruptly influenced him to withdraw as a witness.

“At risk for his safety, P-0397 … and has not been located since, despite extensive efforts. P-0397’s evidence is mostly relevant to Count 1 of the charges against Gicheru, and to his criminal liability,” Steward had said, adding that P-0397’s prior testimony would not be prejudicial to or inconsistent with the rights of the accused “when weighed against its high probative value”.

He said the prior recorded testimony in rule 68(2)(c) includes out-of-court testimony such as witness statements and interview transcripts, as well as in-court testimony. According to Stewart, the documents he is seeking to have admitted are listed in Annex A and include P-0397’s statement and transcriptions of witness interviews. Others are audio files and corresponding transcriptions. Items referred to in the documents that are necessary to understand P-0397’s prior testimony are also listed and the material are accessible through hyperlinks.

Giving the background of the case, Stewart explained that P-0397 was a prosecution witness in the Ruto and Sang case who originally provided a statement in 2012 about the 2007-2008 post-election violence in Kenya. In May 2013, the prosecution received a letter and affidavit from P‐0397 withdrawing as a witness. He ceased contact with the Office of the Prosecutor (OTP) investigators, but in January 2014, fearing for his safety, he resumed contact with the prosecution and gave an interview about facts relevant to article 70 offences, which relate to interfering with the attendance or testimony of ICC witnesses, or retaliating against them. The witness did not testify in the Ruto and Sang case and was last heard of in 2014.

In his latest application, dated November 15, 2021, the prosecution noted that only tracks one to four of audio recording KEN-OTP0124-0018, and tracks eight to 12 of KEN-OTP-0124-00194 are enhanced, and noted that the new transcripts and translation listed in Annex 1 only relate to those enhanced tracks, with each track corresponding to one new transcript and one new translation.

“Therefore the prosecution does not seek to ‘substitute’ the former transcripts and translations which compile all the tracks of the two audio recordings, but rather to add the new material corresponding to the enhanced tracks only,” he said, adding that the items had been disclosed to the defence on November 8 and 12, 2021.

Trial Chamber III, presided over by Judge Miatta Maria, will formally make a decision on the application.

Share your thoughts

By submitting this form, you accept the Mollom privacy policy.