Kenyan lawyer Paul Gicheru, who is accused of bribing eight key witnesses in the case vacated against Deputy President William Ruto at The Hague, is uncomfortable with being tried by Judge Miatta Maria Samba.
Mr Gicheru says his checks on the background of the judge have established that she was previously employed by the International Criminal Court’s Office of The Prosecutor (OTP) between 2006 and 2010.
The lawyer fears that the judge may have forehand information about the case facing him due to her involvement in the Kenya investigations and the contacts she may have had with witnesses and investigators in the case.
As a result, his defence lawyer Michael Karnavas wants to know whether Judge Samba was present during any discussions or de-briefing sessions concerning any of the witnesses in the Ruto and Joshua Sang, or Gicheru cases.
"On July 22, 2021, the defence was notified of the presidency’s decision constituting Trial Chamber III with Judge Samba as the Single Judge. Immediately, as part of its professional and ethical duty of diligence to investigate issues that may impact on Mr Gicheru’s right to a fair trial, the Defence reviewed Judge Samba’s official Curriculum Vitae, Statement of Qualifications, response to the Advisory Committee on Nomination of Judges’ questionnaire, and public profiles and interviews found online," says Mr Karnavas, in his request for further information about the judge.
In the request, the lawyer says according to Judge Samba’s ICC CV, she worked for the ICC OTP as a Field Operations Officer in the Uganda Field Office, “providing assistance to investigators from the OTP… to Kenya, Tanzania and Uganda.”
He points out that in her response to the Advisory Committee’s questionnaire, Justice Samba stated that her “primary duty was to manage witnesses of the OTP, most of whom were vulnerable witnesses and victims of sexual violence”.
She was “also the custodian of exhibits for the OTP and … assisted investigators who went out in the field to gather information and evidence for crimes within the Court’s jurisdiction".
Mr Karnavas adds that a public profile by the Giraffe Heroes Project also states that Judge Samba was “putting her life at risk in Sierra Leone and Uganda in an effort to protect and promote the rights of witnesses and survivors who were participating in an accountability process.”
He wants to be provided with information on the names of any witnesses in the Ruto and Sang and Gicheru cases that Judge Samba interacted with, including the times, locations, and nature of the interactions.
The lawyer also wants to know whether Judge Samba participated in any interviews of any witnesses in the Ruto and Sang or Gicheru cases and the names of the witnesses, the participating OTP staff members, and the times and locations of these interviews.
The Defence is requesting for the information to determine whether further submissions may be necessary and reasonable in ensuring Mr Gicheru’s right to a fair trial conducted by an impartial tribunal.
Also sought is information on the tasks Judge Samba performed in her role as a Field Operations Officer in the Uganda Field Office assisting OTP investigators in Kenya, Tanzania, and Uganda; and the names and positions of OTP staff members with whomshe had contact in connection with the Kenya investigation and the times, locations, and nature of the contacts.
In addition, the defence is interested in knowing whether the judge received or handled any evidence, reports, or communications of any kind regarding the OTP’s investigation in the Ruto and Sang or Gicheru cases and the nature of the said evidence, reports, or communications.
Another question is on whether the impression that Justice Samba was “putting her life at risk in Sierra Leone and Uganda” came from anything concerning any of the witnesses in the Kenya investigation.
Disqualification of judge
Mr Karvanas further interest is on whether upon her appointment, Judge Samba brought to the ICC Presidency’s attention on her employment with the OTP and involvement in the Kenya investigations.
The lawyer says in the ICC presidency's communication on allocation of Gicheru's case to Judge Samba there was no mention of her former employment with the OTP.
The presidency decision only noted her “extensive experience as a trial judge” and that judicial resources are “insufficient to meet the needs at trial”, says Mr Karnavas.
On July 26, 2021, the Defence sent a letter to the Senior Prosecution Trial Lawyer in the Gicheru case, Anton Steynberg, requesting further information regarding Judge Samba’s employment with the ICC OTP.
Mr Steynberg responded and informed him that from 2006 until October 28, 2010 Judge Samba “worked in the OTP as a Field Operations Officer … posted in the Uganda Field Office”.
"Considering the sensitive nature of the matter and that it is incumbent that any issues related to potential recusal or disqualification of a judge are raised as soon as any grounds are discovered, the Defence sent a letter to Trial Chamber III requesting clarification of Judge Samba’s former employment with the ICC OTP.
Trial Chamber III took note of the Defence’s letter on August 17, 2021 and instructed the Defence to file a formal submission," says Mr Karnavas.
