The decision to throw out Deputy President William Ruto’s crimes against humanity case is coming in handy for lawyer Paul Gicheru as he seeks to portray the prosecution witnesses as liars who cannot be trusted.
During the cross-examination of the prosecution’s first witness, P-0800, yesterday, Mr Gicheru’s lead lawyer Michael Karnavas painted a picture of a witness who has changed his story about the events around the 2007 post-election violence and witness tampering several times.
As such, Mr Karnavas argued, the witness cannot be believed in his testimony that he was offered money to withdraw as a prosecution witness against DP Ruto and his co-accused radio journalist Joshua Sang.
“This person is a first-class confabulator,” said Mr Karnavas of witness P-0800, as he also sought to dismiss the witness’s claims that he had previously lied out of fear. “You did not lie out of fear but because you wanted to lie,” Mr Karnavas added.
The portrayal of witness P-0800 as a liar is a defence strategy as they seek to draw from the decision that dismissed the Ruto-Sang case. In that decision, Judge Robert Fremr stated that there were “serious questions regarding Witness 800’s trustworthiness.”
“He has demonstrated a willingness to lie in return for personal gain and induce others to lie as well, apparently without concern for the significant implications of such dishonesty. Moreover, it has not been suggested that Witness 800 acted under duress or fear of retribution.
“In circumstances where a witness has demonstrated such a far-reaching willingness to manipulate the truth, the resulting evidence is incapable of being relied upon by a reasonable Trial Chamber,” Judge Fremr said of the witness in the April 5, 2016 decision.
Witness P-0800 is the prosecution’s star witness in the case against Mr Gicheru as he has provided recorded phone calls allegedly from people who approached him to recant his statement. There are also video recordings of the witness meeting one of the people who has been named as a key suspect in the alleged witness tampering scheme. The videos were allegedly recorded when the witness met with the person in a neighbouring country.
The prosecution has been optimistic that the evidence against Mr Gicheru is overwhelming and would establish, beyond reasonable doubt, his culpability in the witness tampering scheme.
“This trial, therefore, represents an important step towards holding those responsible for witness interference in the Kenya cases accountable for their actions and achieving some measure of retribution on behalf of the victims who were denied justice,” ICC Deputy Prosecutor James Stewart said at the opening of the Gicheru trial on Tuesday.
For that reason, the defence spent the entire Wednesday trying to dismantle the testimony P-0800 has given to the prosecution and which is at the core of the prosecution’s case against Mr Gicheru for his alleged role in bribing witnesses not to testify against Dr Ruto at The Hague.
Mr Gicheru’s lawyer spent considerable time on the witness’s propensity to lie as his basis for dismantling P-0800’s credibility in the eyes of Judge Miatta Maria Samba. According to Mr Karnavas, the witness has in the past given the prosecution an imaginary story of how he met with the person who allegedly introduced him to Mr Gicheru.
“On the spot, you are coming up with an imaginary scenario of what happened and on the spot, you are coming up with an imaginary conversation. You also don’t correct that story on that particular day,” Mr Karnavas told the witness. “You were thinking of a very creative lie to tell to the prosecution.”
At some point, tempers flared as the witness asked Mr Karnavas to “respect my integrity” after the lawyer had insistently referred to him as a liar. But Judge Samba stepped in and asked the witness to calm down.
“I am sure the counsel does not mean to demean you in any way. So just calm down and everything will go on smoothly,” the judge said.
There were also clashes between Mr Karnavas and the witness’ legal adviser, Ms Vessela Terzieva, over asking certain questions in public. Ms Terzieva, who was brought in to advise the witness on instances of possible self-incrimination, wanted certain parts to be held in private sessions while Mr Karnavas wanted to keep to public sessions.
Mr Gicheru’s defence also argues that the witness admitted to having been involved in witness tampering and is, therefore, the least qualified to testify over what he perpetrated.
In the Ruto decision, the witness was found to have “agreed to recant his statement, as well as to approach other prosecution witnesses... to convince them to also recant”.
