ICC judges have ordered prosecutor Fatou Bensouda to release any information on Mungiki support for Raila Odinga at the 2007 presidential elections.

The decision, made public yesterday, followed a confidential request by Deputy President William Ruto and his co-accused, former radio presenter Joshua Sang, who told the ICC that the information is crucial for their “defence trial strategy”.

The judges also ruled that the request should no longer be confidential.

Despite Bensouda’s protest over the request, the judges said it was within the law and the rights of the accused to receive any material that is necessary for their defence preparation.

“The term ‘material to the preparation of the defence’ is to be interpreted broadly, and should be understood as referring to all objects that are relevant for the preparation of the defence,” the judges said.

There have been allegations that the proscribed Mungiki, led by their then leader Maina Njenga, supported ODM and Raila’s presidential bid in 2007.

However, Bensouda has also claimed that President Uhuru Kenyatta used Mungiki to perpetrate violence against ODM supporters in revenge attacks during the post-election violence.

On July 7, Ruto requested that the Chamber order Bensouda to disclose any and all information in its possession demonstrating Mungiki support for ODM and/or Raila.

He also said that he needs all the transcripts of all the interviews that the prosecution has conducted with Mungiki members during its investigations into the Kenyan cases.

On July 9, Sang applied to join Ruto’s request, stating that “any information that tends to suggest ODM had a broader support base than is alleged is material to the preparation” of his defence.

In response, Bensouda said that the request was not relevant, adding that “bold assertions of relevance are insufficient to meet even this low threshold”.

Bensouda also said she has never contended that all Kikuyu supported the PNU, and if certain Kikuyu supported ODM this does not “logically detract from the prosecution’s allegations”.

The judges however differed with Bensouda, saying that Ruto and Sang were not requesting information on all Kikuyu who supported ODM but only on Mungiki.

“The defence have made it sufficiently clear in the un-redacted portions of their filings that they seek the Requested Information for the purpose of exploring whether the predominantly Kikuyu Mungiki organisation constituted an ODM support base, which it suggests may undercut the prosecution allegations noted above,” the judges said.

The judges directed that the defence and the prosecution come up with a common agreement on whether the information sought is uncontested.

“If no Rule 69 agreements are made, the prosecution is to disclose, subject to any applicable restrictions, the Requested Information in its possession or control reasonably suggestive of Mungiki support for the ODM or for Mr Odinga in the 2007 elections, including any transcripts or statements,” the judges said.

The judges also directed that the submissions made by all parties on the matter in confidence be reclassified as public and available to the Legal Representative of Victims and Office of Public Counsel for Victims.

“The Chamber is not persuaded that a generic reference to ‘confidential defence trial strategy’ sufficiently justifies withholding the totality of this litigation from the LRV and OPCV. As set out in the disposition, the Chamber reclassifies and notifies the relevant filings accordingly,” the judges said.


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