President Kenyatta’s case in The Hague has taken a new twist after the ICC prosecutor alleged that some of the evidence the defence intends to use had been forged.
Prosecutor Fatou Bensouda, in an application dated January 31, said the President’s defence team led by Mr Stephen Kay, had in April last year provided them with telephone records, containing ‘incontrovertible evidence’ that the prosecution witnesses were liars.
However, according to Ms Bensouda, it has since been established by a joint expert—instructed by both her office and President Kenyatta’s defence team—that the records had actually been falsified.
“There is compelling evidence that this data was fabricated,” she said in the document that had previously been marked as confidential and whose public version has been heavily redacted.
Went on the prosecutor: “Indeed, the joint expert instructed by the prosecution and defence has reached this conclusion.”
“Given the manner in which the fabrication occurred, there is reason to question the veracity of the data received from the telephone companies directly, but no direct evidence thus far of tampering. Enquiries and verifications are being undertaken as the project continues,” she said.
OUTSTANDING REQUESTS
The prosecutor said her investigators met an unnamed individual who indicated that all telephone records were overwritten after three years.
This implies that data that had been recorded in 2007 or 2008 had obviously been overwritten and what had been provided to the court last year was falsified.
“The prosecution proceeded on the basis that this assertion was accurate until April 2013, when the false records purporting to relate to 2007 and 2008 (obviously older than three years) were produced by the defence,” she said.
Ms Bensouda also accused telecommunications firms in the country of being reluctant to assist in her investigations. They only did so after being approached by the defence.
Read the document; “The prosecution requested (Redacted) relating to a set of phone numbers of interest. (Redacted) a letter stating that a formal request had to be made through the Kenyan authorities.”
“The prosecution submitted a request for assistance to the government on April 24, 2012, for telephone numbers of the then four accused, going back to June 2007. The request is outstanding.”
She says unofficial access to the telephone data was said to have been given to the defence and not the prosecution before this time.
And while responding to question on whether they had sought and received from mobile phone companies in Kenya, all relevant cell phone and cell site data related to relevant persons for the period November 2007 and March 2008, she replied:
“Since gaining access to the data (Redacted), the prosecution has received call data records covering the period of the charges for approximately 30 numbers.”
She said a request for 32 numbers is still awaiting response, but the process of retrieving them was underway.
“The numbers concerned emerged from the prosecution’s investigations and are believed to be attributable to national and local politicians and Mungiki members thought to have been involved in the post-election violence,” she said.
Ms Bensouda says a good number of documentary evidence she has received from the Kenyan authorities had been filtered, tampered or laundered with. Other materials, she said, had also been incomplete.
MISSING DOCUMENTS
She gave an example of a request she gave on July 2010, for the transmission of documents from the Ministries of Internal Security, Immigration and Justice.
They included documents from a judicial file relating to crimes committed against witness number 414 and his family. The prosecution, she said, was granted access to many of these documents between July and September the same year. Some however were missing.
Similarly, she said, the government had not provided all security related documents they had requested.
“The prosecution has sent several letters to the government and engaged in multiple meetings to request the outstanding items. To date, the government has not provided them,” the prosecutor added.
She said that the prosecution decided to prosecute Mr Kenyatta, and it has the power to reconsider its decision if it no longer reasonably believes it will be able to secure a conviction beyond a reasonable doubt.-nation.co.ke
