The International Criminal Court has allowed prosecutors to use the written statement of a key witness, who has gone "missing", against Kenyan lawyer Paul Gicheru.
Judge Miatta Maria Samba, however, deferred the court's ruling on the admissibility of audio recordings and the witness' conversations with investigators and their transcriptions as evidence.
Incidentally, the court had initially raised questions about prosecutors’ claims that the witness was missing. He was earlier said to have been abducted.
The witness, identified as P-397, who prosecutors allege was paid Sh1 million by Mr Gicheru in 2013 to renounce initial statements made to them, went missing in 2014.
Despite receiving the alleged bribe, he expressed his willingness to cooperate with ICC prosecutors but the court heard he had been “abducted”.
Citing the security concern, prosecutors successfully petitioned judges to allow information relating to the witness, who prosecutors told the court had admitted to being bribed, to be withheld from the defence until their “security and attendance are ensured”.
“The timing of the occurrence of the alleged abduction, shortly after the witness resumed contact with the prosecution, is consistent with the prosecution’s suggestion that the witness may be detained by persons who ‘may wish him harm’,” the judges ruled on April 16 2014.
“It is conceivable in the circumstances that the alleged abduction relates to his cooperation with the prosecution.”
However, justices Chile Eboe-Osuji, Olga Herrera Carbuccia and Robert Fremr rejected prosecutors’ allegation that the witness had been abducted by persons directly or indirectly associated with DP Ruto, noting that “this additional allegation was not supported by the material provided”.
Last month prosecutors asked to be allowed to use both his written statement and a transcript of their interviews, including English translations, with him as evidence because he was not available to give oral testimony. The evidence includes 22 transcripts of interviews and their translations.
The person was also a witness in the collapsed case that involved Deputy President William Ruto and journalist Joshua Sang.
The man provided investigators with information detrimental to Dr Ruto in 2012 and later said Mr Gicheru and others corruptly influenced him to withdraw as a witness.
Court filings indicate that Mr Gicheru threatened and offered the witness a bribe of Sh5 million to be paid in instalments, and actually paid him Sh1 million in 2013 to renounce his initial statements to prosecutors.
He deposited the money in his bank account although he had been warned by Mr Gicheru not to do so to avoid detection by the “ICC people”. The witness had wanted a Sh10 million bribe but the amount was negotiated downwards to Sh5 million.
His last communication with prosecutors was in January 2014 when, fearing for his safety, he resumed contact with them and was interviewed about facts relevant to witness bribery allegations against Mr Gicheru.
While allowing the prosecutors’ request, Justice Samba noted that the written statement complied with the rules of the court.
The Chamber noted that the statement was signed by the witness, the prosecution investigator and the prosecution trial lawyer, and certified by the interpreter and initialled by all of them on every page.
The statement also records the dates, times and locations and the individuals present during questioning.
The witness also appears to have understood his rights during questioning, was assisted at all times by an interpreter, answered voluntarily and understood the questions asked of him. He also understood that his interview could be used as evidence.
He said indications were that the witness was made unavailable by interference deployed for the benefit of members of the “Common Plan”.
Common Plan was a network that sought to corruptly influence witnesses that had been lined up against Dr Ruto in his case at the ICC.
