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Disappearance of Key Witness Raises Concerns Over Tampering in ICC Kenya Case

ICC witnesses in Kenya have reported receiving bribery offers and threats of violence from people trying to discredit the court’s judicial efforts.
January 23, 2015, 12:49am
Image via Wikimedia Commons

The International Criminal Court (ICC) restarted its prosecution earlier this month of Kenyan Deputy President William Ruto and Kenyan journalist Joshua Sang, who are being tried for allegedly commissioning gangs to murder and terrorize supporters of an opposition political party during Kenya's 2007-2008 national elections.

But the disappearance in late December of a man whom defense lawyers claim was a key witness in the trial has heightened concerns about the ongoing hazards faced by ICC witnesses in Kenya, many of whom have reported receiving bribery offers and threats of violence from people trying to discredit the court's judicial efforts.


According to local media sources, the witness in question, Meshack Yebei, disappeared on December 28 while his daughter was seeking medical treatment at a hospital near Eldoret, a city about 60 miles east of the Uganda-Kenya border. He left the hospital to purchase water and was never seen again.

Witnesses reportedly told his wife that they had seen Yebei leaving a local market, walking along a stretch of road. Men from two black cars that quickly pulled up alongside Yebei abducted him in one of the vehicles.

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His wife later received a text message from an unknown number claiming to be from Yebei. It told her not to worry, and said that he was with associates of ICC lead prosecutor Fatou Bensouda in Uganda.

The following weekend, the body of an unidentified male was discovered floating in the Yala River some 60 miles south of where Yebei was last seen. He had been shot in the head, and his eyes, ears, tongue, and genitals had been removed.

Relatives identified the body as Yebei's from body markings. But police investigators announced at a press conference last week that they had linked the body's fingerprints to Yusuf Hussein, a bus driver from Nadai County, just southwest of Eldoret, who left his immediate family to visit relatives a few days before Yebei disappeared. On Thursday, police investigators issued a statement claiming that DNA tests had confirmed this, and buried the body in the evening.


Yebei's family is skeptical of the claims, however, and sent DNA samples to an independent testing facility in South Africa.

"We are wondering why the government is in hurry to bury the body knowing that there is a dispute over it," said Yebei's brother. "They should have waited until the matter was cleared."

Local human rights activists have alleged that Yebei's disappearance was premeditated. His family described Yebei as living in fear due to his involvement with the ICC case.

ICC spokesperson Fadi El Abdallah confirmed to VICE News that Yebei was under an ICC witness protection program before he disappeared. Under the program, witnesses are relocated from their families and hometowns, and sometimes out of the country entirely.

"The ICC Registry had afforded Mr. Yebei security measures and a safe house in a new residency with a security guard and alarms," El Abdallah said. "However, he appears to have returned to Eldoret prior to his abduction."

El Abdallah also noted that Yebei is the second witness to have disappeared during the ICC case in Kenya, but he declined to identify or comment on the first.

Tom Maliti, a Kenyan journalist reporting on the ICC trials in Kenya for the International Justice Monitor, thinks that the witness protection program might be a root cause of information leaks that have compromised anonymous witness relocations in the past.

"That isolation seems to disorient witnesses, and at times they get homesick," Maliti told VICE News. "During proceedings it emerged that some witnesses knew each other, and that while under witness protection programs they would talk to each other." Some witnesses might feel comfortable disclosing their new location to family over phone calls and other communications, he added.


"With many cultures in the West, you can just offer protection to the husband, wife, and children by relocating them to a different country," Njonjo Mue, a human rights lawyer and member of nonprofit coalition Kenyans for Peace with Truth and Justice, told VICE News. "But familial ties in Africa make that more challenging, because families are very big and very close. Because of this, there is a larger group of people who may be targeted with threats or bribes to release information on a witness' whereabouts."

Since the case began, accusations of tampering with witnesses on both sides of the bar have abounded throughout Kenyan media coverage, political statements, and local human rights reports. But the ICC was not able to confirm for VICE News exactly how many witnesses have claimed to be victims of tampering.

Maliti noted that the ICC legally forced at least nine registered witnesses to testify in 2013 after they had recanted their participation, with prosecutors alleging that they were influenced by bribes they had received.

"These witnesses had withdrawn or stopped communicating with the prosecution," he said. "But the prosecution succeeded in getting court orders that compelled these witnesses to testify, some of which were coordinated through live video conferences while they were absent from the court."

Members of the prosecution have continuously highlighted their struggle to retain valuable testimony. In 2013, an official at the Office of the Prosecutor was reported as saying that the ICC's case in Kenya had experienced more witness attrition than any other in the tribunal's history. ICC lead prosecutor Fatou Bensouda described the reports of witness tampering as "unprecedented."


Although the ICC delivered a vigorous response to witness tampering in 2013 when it issued an arrest warrant for national journalist Walter Barasa on accusations that he had attempted to corrupt three witnesses, Mue said that the tribunal is not equipped to pursue people suspected of tampering with witnesses.

"The ICC operates in fairly difficult terrain, as it prosecutes some of the most powerful individuals in the world," he said. "The trial process is drawn out and very expensive. The decision to focus on the people accused of crimes against humanity, and not those who may be tampering with witnesses, is a dilemma of resources, and not a dilemma of lack of will to prosecute."

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But while the ICC dropped its case against incumbent President Uhuru Kenyatta last December due to obstacles in obtaining government documents and other valuable evidence, Mue said that Kenyans remain optimistic that the court will bring justice to those who deserve it.

"The ICC's presence in Kenya is often contested along the political divide, which means you will find that half the country supports it, and the other half does not," he said. "But if you go to the village and speak with the communities that were directly affected by the violence, they will tell you that the ICC might be their only hope."

Follow Johnny Magdaleno on Twitter: @johnny_mgdlno Photo viaWikimedia Commons