The Prosecutor v. Paul Gicheru

Original: English No. ICC-01/09-01/20 Date: 15 July 2021

PRE-TRIAL CHAMBER A (ARTICLE 70)

Before: Judge Reine Adélaïde Sophie Alapini-Gansou

SITUATION IN THE REPUBLIC OF KENYA

IN THE CASE OF

THE PROSECUTOR v. PAUL GICHERU

Public Redacted

Decision on the confirmation of charges against Paul Gicheru

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Decision to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for the Defence

Mr James Stewart Mr Michael Karnavas

Legal Representatives of Victims Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants for Participation/Reparations

The Office of Public Counsel The Office of Public Counsel for Victims for the Defence

States Representatives Amicus Curiae

REGISTRY Registrar Counsel Support Section

Mr Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Other Reparations Section

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PRE-TRIAL CHAMBER A (ARTICLE 70) of the International Criminal Court (the ‘Court’), pursuant to articles 21, 25(3), 30, 61(7), 64, 67, 69 and 70 of the Rome Statute

(the ‘Statute’) and rules 63, 64, 76, 121, and 162 to 165 of the Rules of Procedure and

Evidence (the ‘Rules’), issues this Decision on the confirmation of charges against Paul

Gicheru (hereinafter ‘Mr Gicheru’).

Mr Gicheru was born on 28 November 1972 in Nandi District, in the Republic of Kenya

1 2 3 (hereinafter ‘Kenya’). He is currently residing in Kenya and works as a lawyer with

a practice in Eldoret and in Nairobi, Kenya.

I. PROCEDURAL HISTORY

1 On 10 March 2015, Pre-Trial Chamber II, in its then composition, issued warrants

5 of arrest against Mr Gicheru and Philip Kipkoech Bett (hereinafter ‘Mr Bett’) for their

alleged responsibility for offences against the administration of justice under article

6 70(1)(c) of the Statute.

2 On 2 November 2020, Mr Gicheru surrendered himself to the authorities of the Kingdom of the Netherlands (‘the Netherlands’).

3 On 2 November 2020, the President of the Pre-Trial Division constituted the

7 present Chamber pursuant to rule 165(2) of the Rules, as drawn up by the judges of

the Court acting under article 51(3) of the Statute on 10 February 2016 (the ‘Provisional

rule 165 of the Rules’), and regulation 66 bis (1) of the Regulations of the Court (the ‘Regulations’), which was adopted and entered into force on the same day.

1 Transcript of hearing, 6 November 2021, ICC-01/09-01/20-T-001-Red-ENG , pp. 3, 17-18. 2 Public Redacted Version of ‘Decision on Mr Gicheru’s Request for Interim Release’ , 29 January 2021, ICC-01/09-01/20-90-Red2 (confidential and confidential redacted version filed on the same day), para. 47, page 15. 3 Transcript of audio-video material, OTP/Mr Gicheru, KEN-OTP-0159-0723, p. 0726, lines 101-102. KEN-OTP-0159-0585. See also letterhead: Annex 2 to the The Accused Person’s Request for Interim Release under the Provisions of Article 60(2) of the Rome Statute, 9 November 2020, ICC-01/09-01/20- 38-Conf-Anx2. Mr Gicheru, KEN-OTP-0159-0795, pp. 0802-0803, lines 217-244; KEN-OTP-0159- 0766, p. 0782, lines 517-533. 5 P-0579. Philip Kipkoech Bett is also known as ‘Kipseng’erya’. See . See also paragraph 195 below. 6 Decision on the ‘Prosecution’s Application under Article 58(1) of the Rome Statute’, ICC-01/09-01/15- 1-Conf-Exp (a public redacted version was notified on the same day, see ICC-01/09-01/20-1-Red ). 7 Decision Constituting a Chamber Composed of one Judge from the Pre-Trial Division to Exercise the Powers and Functions of the Pre-Trial Chamber in the Present Case , ICC-01/09-01/20-32.

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4 On 3 November 2020, following the completion of domestic proceedings in the Netherlands, Mr Gicheru was surrendered to the Court and arrived at the Court’s Detention Centre. 5. On 6 November 2020, in accordance with the Chamber’s order dated 4 November 8 2020, Mr Gicheru appeared before the Chamber pursuant to article 60(1) of the Statute and rules 121(1) and 163(1) of the Rules. During the first appearance, the Chamber inter alia ordered: (i) the Prosecutor to submit observations on the progress of her investigation, the disclosure of evidence and the protection of witnesses by 18 9 November 2020; and (ii) the Prosecutor and the Defence to submit observations on the possibility of severing the case against Mr Gicheru from the case against Mr Bett by 20 10 November 2020 and 26 November 2020 respectively. The Chamber also decided that, pursuant to Provisional rule 165(3) of the Rules, no confirmation hearing would be held in the present case, and that the parties should instead file written submissions on 15 March 2021 at the latest. 6. On 12 November 2020, the Chamber issued the ‘Decision on the Request to Submit Observations on behalf of the Office of the Public Counsel for the Defence’ (the ‘OPCD Request’ and ‘OPCD’ respectively). 11 The Chamber granted leave to the OPCD to submit the observations set out in the OPCD Request. 7. On 18 November 2020, the Chamber received the ‘Notification of the 12 Appointment of Mr Michael G. Karnavas as Counsel for Mr […] Gicheru’. 8. On 10 December 2020, the Chamber issued the ‘Decision on the Applicability of 13 Provisional rule 165 of the Rules of Procedure and Evidence’. The Chamber found that Provisional rule 165 of the Rules is applicable to the present proceedings and that

8 Order Setting the Date for the Initial Appearance of Mr Gicheru , ICC-01/09-01/20-34. 9 Transcript of hearing, 6 November 2021, ICC-01/09-01/20-T-001-Red-ENG , p. 11, lines 21-23. 10 Transcript of hearing, 6 November 2021, ICC-01/09-01/20-T-001-Red-ENG , p. 12, lines 5-9. 11 ICC-01/09-01/20-43 . See also OPCD Request for Leave to Appear on the Applicability of Provisional Rule 165’ on behalf of the Office of the Public Counsel for the Defence , 11 November 2020, ICC-01/09- 01/20-40. 12 ICC-01/09-01/20-48 , together with public annex I . See also Registry, Mr Paul Gicheru’s legal representation, 13 November 2020, ICC-01/09-01/20-45-Conf, together with two confidential annexes. 13 ICC-01/09-01/20-61 . See also OPCD Submissions on the Inapplicability of Provisional Rule 165 , 17 November 2020, ICC-01/09-01/20-47; Prosecution’s Response to ‘OPCD’s Submissions on the Inapplicability of Provisional Rule 165’ , 20 November 2020, ICC-01/09-01/20-52; Paul Gicheru’s Observations and Response to OPCD Submissions on the Inapplicability of Provisional Rule 165 , 25 November 2020, ICC-01/09-01/20-53.

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it has been properly constituted as a chamber composed of one judge to exercise the

14

functions and powers of Pre-Trial Chamber A in the present case.

9 On 11 December 2020, the Chamber issued the ‘Decision Severing the Case

against Mr Gicheru’.

15

The Chamber ordered the Registrar to open a new case record

entitled The Prosecutor v. Paul Gicheru and further determined that Pre-Trial Chamber

16

II shall remain seized of the case against Mr Bett.

10 On 23 December 2020, the Chamber issued the ‘Decision on the “Request for

leave to appeal the Decision on the Applicability of Provisional Rule 165”’.

17

The

Chamber granted the OPCD Request in relation to the three issues raised with the first

18

issue and the third issue as reformulated by the Chamber.

11 On 29 January 2021, the Chamber granted Mr Gicheru’s request for interim

19

release subject to conditions on the basis of rule 119 of the Rules.

14 ICC-01/09-01/20-61 , p. 22. Prosecution’s written submissions concerning self-representation, 15 ICC-01/09-01/20-62 . See also severance of the charges, registration and disclosure of evidence, and other procedural matters pertaining to pre-confirmation proceedings , 16 November 2020, ICC-01/09-01/20-46; Paul Gicheru’s Response to the Prosecution’s written submissions concerning severance of the charges, registration and disclosure of evidence, and other procedural matters pertaining to pre-confirmation proceedings , 1 December 2020, ICC-01/09-01/20-56. 16 ICC-01/09-01/20-62 , paras 15, 17. 17 ICC-01/09-01/20-68 . See also Request for leave to appeal the Decision on the Applicability of Provisional Rule 165 , 17 December 2020, ICC-01/09-01/20-63 (filed on 16 December 2020, notified on 17 December 2020); Paul Gicheru’s Response to OPCD’s Request for Leave to Appeal the Decision on the Applicability of Provisional Rule 165 , 18 December 2020, ICC-01/09-01/20-64; Prosecution, Prosecution’s Response to OPCD’s ‘Request for leave to appeal the Decision on the Applicability of Provisional Rule 165’ , 21 December 2020, ICC-01/09-01/20-66. 18 ICC-01/09-01/20-68 , paras 24-43. 19 Decision on Mr Gicheru’s Request for Interim Release, ICC-01/09-01/20-90-Conf (a public redacted version was notified the same day, see ICC-01/09-01/20-90-Red2) , para. 47. See also Registrar, Transmission of observations submitted by the Republic of Kenya and the Kingdom of the Netherlands pursuant to Pre-Trial Chamber A’s Order ICC-01/09-01/15-42 of 12 November 2020 , 27 November 2020, ICC-01/09-01/20-54, together with public annexes I and II ; Paul Gicheru’s Response to Observations submitted by the Republic of Kenya and the Kingdom of the Netherlands pursuant to Pre- Trial Chamber A’s Order of 12 November 2020 , 2 December 2020, ICC-01/09-01/20-57; Prosecution’s Response to the observations submitted by the Republic of Kenya and the Kingdom of the Netherlands and associated requests , 4 December 2020, ICC-01/09-01/20-58; Gicheru’s Request for Clarification Concerning the Pre-Trial Chamber A’s Email of 23 December 2020, 29 December 2020, ICC-01/09- 01/20-72-Conf (a public redacted version was notified on 29 January 2021, see ICC-01/09-01/20-72- Red ), together with one public annex ; Registrar, Transmission of Further Observations Submitted by the Kenyan Authorities pursuant to Pre-Trial Chamber A’s Order ICC-01/09-01/20-76 of 31 December 2020 , 21 January 2021, ICC-01/09-01/20-82, together with one public annex ; Response to Further Observations Submitted by the Kenyan Authorities pursuant to Pre-Trial Chamber A’s Order ICC-01/09-01/20-76 of 31 December 2020, 21 January 2021, ICC-01/09-01/20-85-Conf (a public redacted version was notified on 29 January 2021, see ICC-01/09-01/20-85-Red ).

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12 On 26 February 2021, the Chamber issued the ‘Decision on the postponement of the date of filing of written submissions and other related deadlines for the confirmation of charges proceedings’ and set new dates for the confirmation proceedings. 20 The Chamber ordered: (i) the Prosecutor to file the document containing the charges and list of evidence on 12 March 2021 at the latest; (ii) the Defence to file its list of evidence on 8 April 2021 at the latest; (iii) the Prosecutor and the Defence to file their written submissions, replacing the confirmation hearing in the present case, on 23 April 2021 at the latest; (iv) the Prosecutor to file her response to the Defence’s written submissions

on 30 April 2021 at the latest; and (v) the Defence to file its response to the Prosecutor’s written submissions and its reply to the Prosecutor’s response to the Defence’s written

submissions on 7 May 2021.

13 On 8 March 2021, the Appeals Chamber issued the ‘Judgment on the appeal of

the Office of Public Counsel for the Defence against the decision of Pre-Trial Chamber A of 10 December 2020 entitled “Decision on the Applicability of Provisional Rule 165 of the Rules of Procedure and Evidence”’, confirming the Chamber’s decision on the

21 applicability of Provisional rule 165 of the Rules.

14 On 12 March 2021, the Chamber received the ‘Prosecution’s submission of the document containing the charges, the list of evidence and related annexes’ (the ‘DCC’). 22

15 On 26 March 2021, the Chamber issued the ‘Order related to the confirmation of

23 charges proceedings’ (the ‘26 March 2021 Order’).

On 14 April 2021, the Chamber received the ‘Defence List of Evidence’. 24 16.

20 ICC-01/09-01/20-103 . See also Request for Extension of Time Limits to File the Defence List of Evidence and Response to the Document Containing the Charges, 5 February 2021, ICC-01/09-01/20- 96-Conf (a public redacted version was notified on 9 February 2021, see ICC-01/09-01/20-96-Red ), together with confidential annexes A, C, and D and public annex B; Prosecution’s Response to the Defence ‘Request for Extension of Time Limits to File the Defence List of Evidence and Response to the Document Containing the Charges’, 8 February 2021, ICC-01/09-01/20-97-Conf-Exp (a public redacted version was notified the next day, see ICC-01/09-01/20-97-Red2 ). 21 ICC-01/09-01/20-107 , para. 117. 22 ICC-01/09-01/20-125-Conf-AnxA-Corr3 (the third corrected version of annex A, containing the DCC, was filed on 11 May 2012; a public redacted corrected version was filed on 12 July 2021, see ICC-01/09- 01/20-125-AnxA-Corr-Red-Corr ), together with the transmission filing, ICC-01/09-01/20-125 , public annex C2 and confidential annexes A, B, C1, C3, and D. 23 ICC-01/09-01/20-127 . 24 ICC-01/09-01/20-134 , together with confidential annex A.

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17 On 23 April 2021, the Chamber granted the Defence’s request for an extension

25

of time to file its written submissions. On the same day, it issued an amended

26

scheduling order for the confirmation of charges proceedings. The Chamber

instructed: (i) the parties to file their written submissions on 30 April 2021, at the latest;

(ii) the Defence to file its reply on 17 May 2021 at the latest; and (iii) the Prosecution

27

to complete the disclosure of evidence by 26 April 2021, at the latest.

28

18 On 30 April 2021, the Chamber received the parties’ written submissions.

19 On 7 May 2021, the Chamber received the ‘Prosecution’s response to “Paul Gicheru’s Written Submissions on the Confirmation of Charges”, ICC-01/09-01/20-

29

141-Conf’ (the ‘Prosecution Response’).

20 On 18 May 2021, the Chamber received the ‘Reply to the Prosecution’s Response

30

to Paul Gicheru’s Written Submissions’ (the ‘Defence Reply’).

21 On 29 June 2021, the Chamber issued the ‘Order on the Recusal of the Prosecutor from the Current Case’, in which it took note of the Prosecutor’s recusal in the current

31

case and specified the consequences attached to this recusal.

25 Pre-Trial Chamber A, Email to the parties, at 9:45. See also Urgent Defence Request for an Extension of Time to File its Written Submissions on the Confirmation of Charges, 21 April 2021, ICC-01/09- 01/20-136-Conf; Prosecution’s Response to the ‘Urgent Defence Request for an Extension of Time to File its Written Submissions on the Confirmation of Charges’, 22 April 2021, ICC-01/09-01/20-137- Conf. 26 ICC-01/09-01/20-138 . 27 ICC-01/09-01/20-138 , p. 4. 28 Paul Gicheru’s Written Submissions on the Confirmation of Charges, ICC-01/09-01/20-141 (a public redacted version was notified the same day, see ICC-01/09-01/20-141-Red ) (the ‘Defence Written Submissions’); Prosecution’s written submissions on the confirmation of charges, ICC-01/09-01/20-143- Conf (a public redacted version was notified on 3 May 2021, see ICC-01/09-01/20-143-Red ) (the ‘Prosecution Written Submissions’). 29 ICC-01/09-01/20-145-Conf (public redacted version filed on 7 May 2021 and public corrected version filed on 10 May 2021, see ICC-01/09-01/20-145-Red-Corr ). 30 ICC-01/09-01/20-147-Red . 31 ICC-01/09-01/20-149 .

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II. JURISDICTION OF THE COURT AND NATURE OF THE PRESENT

DECISION

22 The Chamber has satisfied itself, pursuant to article 70(1) of the Statute in

conjunction with rule 162 of the Rules, that the present case falls within the jurisdiction

of the Court.

23 The purpose of the pre-trial proceedings is to determine whether the case, as

presented by the Prosecutor, is sufficiently established to warrant a full trial. The

procedure of confirmation of charges protects the suspect from wrongful and unfounded

32

accusations, by ensuring that ‘only those persons against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought’ are

33

committed for trial.

32 Pre-Trial Chamber I, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Rectificatif à la Décision relative à la confirmation des charges portées contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , 13 November 2019, ICC-01/12-01/18-461-Corr-Red (confidential corrected version notified on 8 November 2019; original version notified on 30 September 2019) (the ‘ Al Hassan Confirmation Decision’), para. 42; Pre-Trial Chamber I, The Prosecutor v. Ahmad Al Faqi Al Mahdi , Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi , 24 March 2016, ICC-01/12-01/15-84-Red (confidential version notified same day) (the ‘ Al Mahdi Confirmation Decision’), para. 15; Pre-Trial Chamber II, The Prosecutor v. Jean- Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido , Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute , 11 November 2014, ICC-01/05-01/13-749 (the ‘ Bemba et al. Confirmation Decision’), para. 28; Pre-Trial Chamber II, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali , Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute , 23 January 2012, ICC-01/09-02/11- 382-Red (confidential version notified on 23 January 2012) (the ‘ Muthaura et al. Confirmation Decision’), para. 52; Bemba et al. Confirmation Decision , para. 28; Pre-Trial Chamber I, The Prosecutor v. Callixte Mbarushimana , Decision on the Confirmation of Charges , 16 December 2011, ICC-01/04- 01/10-465-Red (confidential version notified same day) (the ‘ Mbarushimana Confirmation Decision’), para. 41; Pre-Trial Chamber I, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus , Corrigendum of the ‘Decision on the Confirmation of Charges’ , 8 March 2011, ICC-02/05- 03/09-121-Corr-Red (confidential corrected version notified same day; original version filed on 7 March 2011) (the ‘ Banda and Jerbo Confirmation Decision’), para. 31; Pre-Trial Chamber I, The Prosecutor v. Bahar Idriss Abu Garda , Decision on the Confirmation of Charges , 8 February 2010, ICC-02/05-02/09- 243-Red (confidential version notified same day) (the ‘ Abu Garda Confirmation Decision’), para. 153; Pre-Trial Chamber I, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , Decision on confirmation of charges , 30 September 2008, ICC-01/04-01/07-717 (the ‘ Katanga Confirmation Decision’), para. 63; Pre-Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo , Decision on the confirmation of charges , 14 May 2007, ICC-01/04-01/06-803-tENG (original version filed on 29 January 2007 and notified on 2 February 2007) (the ‘ Lubanga Confirmation Decision’), para. 37. 33 Al Hassan Confirmation Decision , para. 42; Al Mahdi Confirmation Decision , para. 18; Bemba et al. Confirmation Decision , para. 37; Mbarushimana Confirmation Decision , para. 41; Banda and Jerbo Confirmation Decision , para. 31; Abu Garda Confirmation Decision , para. 153; Pre-Trial Chamber II, The Prosecutor v. Jean-Pierre Bemba Gombo , Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo , 15 June 2009, ICC-01/05- 01/08-424 (the ‘ Bemba Confirmation Decision’), para. 39; Lubanga Confirmation Decision , para. 37.

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24 The Chamber recalls that its decision under article 61(7) of the Statute is ‘a

limited judicial intervention, the objective of which is to ensure that there is a case worthy of trial and to define the parameters of the subject matter of that trial’. 34 The Chamber further recalls that it ‘must calibrate its review of the factual allegations

carefully according to its role as “gatekeeper”, taking into account the need to proceed

expeditiously so as not to cause undue delay to the proceedings as a whole’. 35

25 The Chamber renders its determination under the applicable standard at this stage

of the proceedings, as set out in article 61(7) of the Statute, on whether there is sufficient

evidence to establish substantial grounds to believe that the suspect committed each of

the offences as charged, consistent with the jurisprudence of the Court. To meet this

36 evidentiary threshold, the Chamber must be ‘thoroughly satisfied that the [Prosecutor’s] allegations are sufficiently strong to commit [the person] for trial’. 37 Pre-

trial chambers have consistently held that, in order to meet the evidentiary burden of ‘substantial grounds to believe’, the Prosecutor must ‘offer concrete and tangible proof

demonstrating a clear line of reasoning underpinning [the] specific allegations’. 38

26 The Chamber notes that this standard is the only applicable one at the pre-trial

stage. On this basis, the Chamber rejects the Defence’s argument that the Chamber

should confirm the charges only if it is satisfied that the evidence presented by the

Prosecutor, additionally, meets prima facie the No Case to Answer standard which was

39 introduced by some trial chambers during the trial stage. In sum, the Chamber has to

34 Appeals Chamber, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Judgment on the appeal of Mr Al Hassan against the decision of Trial Chamber X entitled ‘Decision on application for notice of possibility of variation of legal characterisation pursuant to Regulation 55(2) of the Regulations of the Court’ , 1 July 2021, ICC-01/12-01/18-1562-Red (the ‘ Al Hassan Appeal Judgment on legal characterisation of the charges’), para. 4. See also , para. 92. 35 Al Hassan Appeal Judgment on legal characterisation of the charges , para. 4. 36 For the threshold of ‘substantial grounds to believe’, see e.g. Appeals Chamber, The Prosecutor v. Omar Hassan Ahmad Al Bashir , Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’ , 3 February 2010, ICC-02/05-01/09-73, para. 30; Muthaura et al. Confirmation Decision , para. 52. 37 Al Hassan Confirmation Decision , para. 42; Bemba et al. Confirmation Decision , para. 25; Lubanga Confirmation Decision , para. 39. 38 Al Hassan Confirmation Decision , para. 44; Bemba et al. Confirmation Decision , para. 25. See e.g. Pre-Trial Chamber I, The Prosecutor v. Laurent Gbagbo , Decision on the confirmation of charges against Laurent Gbagbo , 12 June 2014, ICC-02/11-01/11-656-Red (confidential version notified same day) (the ‘ Gbagbo Confirmation Decision’), para. 19; Pre-Trial Chamber II, The Prosecutor v. Bosco Ntaganda , Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda 9 June 2014, ICC-01/04-02/06-309 (the ‘ Ntaganda Confirmation Decision’), para. 9. 39 See Defence Written Submissions, para. 10; Defence Reply, paras 4, 18, 19.

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ensure that only charges which are sufficiently supported by the available evidence and which are clear and properly formulated, in their factual and legal aspects, are to be 40 submitted to a trial chamber for its determination.

III. OBSERVATIONS PURSUANT TO RULE 122(3) OF THE RULES

27 The Chamber recalls that in its 26 March 2021 Order, it noted that under rule 122(3) of the Rules, at the Confirmation Hearing and ‘[b]efore hearing the matter on the merits, the Presiding Judge of the Pre-Trial Chamber shall ask the Prosecutor and the person whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing.’ 41 Accordingly, in order to protect the parties’ right to raise objections in the absence of a confirmation hearing, the Chamber invited the parties ‘to include in their Written Submissions, as a preliminary matter, any objections or observations they might have concerning the conduct of the proceedings’. 42 28. The Chamber notes that the parties have not raised any objections or observations under rule 122(3) of the Rules.

IV. GENERAL REMARKS ON THE ASSESSMENT OF EVIDENCE

Previous decisions taken in the Main Case

29 The Chamber notes that several decisions have been rendered by Trial Chamber V(A) (the ‘Main Case Chamber’ or ‘Trial Chamber V(A)) in the case The Prosecutor v. William Samoei Ruto and Joshua Arap Sang (the ‘ Ruto and Sang Case’ or ‘Main Case’) concerning allegations of witness interference which are also subject to the case before it. The Chamber takes note of these decisions. However, it stresses that it does not simply follow the findings contained in these decisions. It will independently conduct an assessment of the evidence before it. All conclusions reached by the Chamber are based on its own evaluation of the evidence before it.

40 Al Hassan Confirmation Decision , para. 43; Al Mahdi Confirmation Decision , para. 17. 41 ICC-01/09-01/20-127 , para. 13. 42 ICC-01/09-01/20-127 , para. 13. No: ICC-01/09-01/20 11/81 15 July 2021

The Chamber’s determination as to relevance and admissibility of evidence

30 The Chamber notes that the parties have raised and elaborated on a number of 43 issues in relation to the assessment of evidence. In light of these observations, the Chamber finds it appropriate to set out the relevant standards in relation to the assessment of evidence.

31 The Statute and the Rules grant pre-trial chambers the power to determine the 44 relevance or admissibility of evidence as well as its weight.

32 The very nature of pre-trial proceedings precludes pre-trial chambers from conclusively determining the probative value of evidence, including with respect to credibility of witnesses, whose statements are, generally, put before it in written form alone. As the Appeals Chamber has said, ‘the Pre-Trial Chamber’s determinations will necessarily be presumptive’, and the Pre-Trial Chamber ‘should take great care in finding that a witness is or is not credible’. 45 However, because a pre-trial chamber establishes facts (at the required standard) based on evidence, it must assess the said evidence, including potential contradictions therein. Accordingly, the Chamber notes that it must ‘assess the evidence and resolve any ambiguities, contradictions, inconsistencies or doubts as to credibility arising from contestation of the evidence’. 46 In the words of the Appeals Chamber:

Any other interpretation would carry the risk of cases proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish 47 substantial grounds to believe the person committed the crimes charged.

33 All of the Chamber’s findings in the present decision are made on the basis of the 48 statutory standard applicable at this stage of the proceedings and are based on an assessment of the evidence relied upon by the Prosecutor and the Defence, as included

43 For the Prosecutor, see Prosecutor Written Submissions, paras 15-29, Prosecutor Response, paras 6- 15; for the Defence, see Defence Written Submissions, paras 5-12, Defence Reply, paras 1-20. 44 Appeals Chamber, The Prosecutor v. Callixte Mbarushimana , Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled ‘Decision on the confirmation of charges’, 30 May 2012, ICC-01/04-01/10-514 (the ‘ Mbarushimana Appeal Judgment’), para. 42. 45 Mbarushimana Appeal Judgment , para. 48; Al Hassan Confirmation Decision , para. 46. 46 Mbarushimana Appeal Judgment , paras 40, 46; Al Hassan Confirmation Decision , para. 46. 47 Mbarushimana Appeal Judgment , para. 46; Al Hassan Confirmation Decision , para. 46. 48 See paragraph 25 above.

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in their respective lists of evidence pursuant to rule 121(3) and (6) of the Rules, taking into account the written submissions filed in lieu of the hearing and the responses thereto. 34. The Chamber presents the result of its own assessment of the Prosecutor’s allegations in light of the entirety of the evidence presented by the parties. The Defence’s arguments and challenges to the Prosecutor’s evidence have been considered throughout this assessment. Where necessary, the Chamber provides a separate response to the arguments and challenges raised. In its decision, the Chamber refers only to those pieces of evidence it considers relevant and sufficient to sustain its findings, without prejudice to the relevance of other pieces of evidence presented by 49 the parties. 35. The Chamber recalls that it is not obliged, as a matter of principle, to undertake an assessment of the admissibility of each piece of evidence in accordance with 50 article 69(4) of the Statute, save for the application of article 69(7) of the Statute. 36. The Chamber notes that the Prosecutor

. The Chamber also notes that in a report, the Prosecution investigators indicated that

51 . The Prosecution investigators further indicated that

49 Al Hassan Confirmation Decision , para. 45; Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, Decision on confirmation of charges against Dominic Ongwen , 23 March 2016, ICC-02/04-01/15-422- Red (the ‘ Ongwen Confirmation Decision’), para. 19; Pre-Trial Chamber I, The Prosecutor v. Charles Blé Goudé , Decision on the confirmation of charges against Charles Blé Goudé , 11 December 2014, ICC-02/11-02/11-186 (the ‘Blé Goudé Confirmation Decision’), paras 15, 16; Gbagbo Confirmation Decision , para. 22; Muthaura et al. Confirmation Decision , para. 60; Mbarushimana Confirmation Decision , para. 48; Banda and Jerbo Confirmation Decision , para. 39; Abu Garda Confirmation Decision , para. 45; Bemba Confirmation Decision , para. 39; Katanga Confirmation Decision , para. 69; Lubanga Confirmation Decision , para. 39. 50 Bemba et al. Confirmation Decision , para. 14; Pre-Trial Chamber II, The Prosecutor v. Bosco Ntaganda , Decision on Admissibility of Evidence and Other Procedural Matters , 8 June 2014, ICC- 01/04-02/06-308, para. 25. 51 OTP Investigator Report, KEN-OTP-0159-0884, para. 19.

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.

52

The Chamber considers it appropriate to draw the Trial Chamber’s

attention to this evidence in order to conduct any enquiries it may deem necessary

pursuant to article 69(4) and (7) of the Statute, as it finds that the Trial Chamber is

better equipped to undertake an assessment of the admissibility of the said evidence,

due to the limited information available to this Chamber at this stage of the proceedings.

53

37 The Chamber notes that the Prosecutor refers in its DCC to material which

54

admission into evidence was rejected by the Main Case Chamber. Since the Chamber

does not rely on this evidence in the present decision, no assessment of its admissibility

pursuant to article 69(4) and/or (7) of the Statute is warranted. The Chamber considers

it appropriate however to draw the Trial Chamber’s attention to this evidence in order

to conduct any enquiries it may deem necessary.

38 As to the Defence’s arguments regarding the ‘low probative value’ of hearsay

55

evidence, the Chamber recalls that it may rely on indirect evidence but that as a

general rule, such evidence must be accorded a lower probative value than direct

56

evidence. Indeed, ‘the fact that evidence is hearsay does not necessarily deprive it of

probative value, but does indicate that the weight or probative value afforded to it may be less, “although even this will depend upon the infinitely variable circumstances

57

which surround hearsay evidence”’.

52 OTP Investigator Report, KEN-OTP-0159-0884, para. 20. 53 This concerns the following material: KEN-OTP-0130-0462, KEN-OTP-0130-0478, KEN-OTP-0130- 0507, KEN-OTP-0130-0540, KEN-OTP-0130-0563, KEN-OTP-0130-0566, KEN-OTP-0130-0585. See e.g. DCC, paras 78, 83, 141, 162, 320, 386, 468, 506, 511, 514, 534-538, 548, 550. 54 Trial Chamber V(A), Reasons for the Decision on Admission of Certain Evidence Cormected to Witness 495, rendered on 17 November 2014 , 11 December 2014, ICC-01/09-01/11-1753 (reclassified as public on 1 December 2017). 55 Defence Written Submissions, paras 4(d), 105; Defence Reply, paras 1, 11, 12. 56 Bemba Confirmation Decision , para. 51; Pre-Trial Chamber II, The Prosecutor v. William Samoei Ruto, Henry Kiprono Koshey and Joshua Arap Sang , Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute , 23 January 2012, ICC-01/09-01/11-373 (the ‘ Ruto and Sang Confirmation Decision’), para. 74. 57 Appeals Chamber, The Prosecutor v. Jean- Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean- Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido , Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’ , 8 March 2018, ICC-01/05-01/13-2275-Red (confidential version notified the same day) (the ‘ Bemba et al . Appeal Judgment’), para. 874, and Appeals Chamber, The Prosecutor v. Mathieu Ngudjolo Chui , Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’ , 7 April 2015, ICC-01/04-02/12-271-

No: ICC-01/09-01/20 14/81 15 July 2021

39 The Chamber will take evidence into account if it considers it to be relevant and

58

of sufficient probative value.

Witness credibility

40 The Chamber bears in mind that, due to the nature of the confirmation of charges

proceedings, the evaluation of the credibility of witnesses is limited and ‘necessarily presumptive’. While a pre-trial chamber may evaluate the credibility of witnesses, ‘it

59

should take great care in finding that a witness is or is not credible’.

41 Whether a particular witness is considered credible will depend on a case-by-case

assessment of the evidence, in light of all relevant circumstances. While the fact that a

witness is known to have previously given false testimony before a court is one of such

relevant circumstances to be duly considered when assessing the reliability of the concerned witness’s testimony, this fact does not necessarily mean that his or her entire

60

testimony should be automatically excluded. No witness is per se unreliable,

61

including a witness that has previously given false testimony before a court. Instead,

each statement made by a witness must be assessed individually. In this respect, the

Chamber also recalls that a chamber may rely on certain aspects of a witness’s evidence

62

and consider other aspects unreliable.

63

42 The Defence asserts that the Chamber should reject uncorroborated evidence.

The Chamber notes that, in accordance with rule 63(4) of the Rules, there is no legal

Corr (original version notified on 27 February 2015) (the ‘ Ngudjolo Appeal Judgment’), para. 226 referring to ICTY, Appeals Chamber, The Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence , 16 February 1999, IT-95-14/1, para. 15. 58 Al Mahdi Confirmation Decision , para. 20; Bemba et al. Confirmation Decision , para. 14; Bemba Confirmation Decision , paras 41, 42; Pre-Trial Chamber II, The Prosecutor v. Bosco Ntaganda , Decision on Admissibility of Evidence and Other Procedural Matters , 8 June 2014, ICC-01/04-02/06-308, para. 25. 59 Mbarushimana Appeal Judgment , para. 48; Al Hassan Confirmation Decision , para. 46; Al Mahdi Confirmation Decision , para. 19; Ongwen Confirmation Decision , para. 18; Gbagbo Confirmation Decision , para. 21; Bemba et al. Confirmation Decision , para. 16. 60 Bemba et al. Appeal Judgment , para. 1019. 61 Bemba et al. Appeal Judgment , paras 1019, 1081; Trial Chamber, The Prosecutor v. Jean- Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido , Judgment pursuant to Article 74 of the Statute , 19 october 2016, ICC-01/05-01/13-1989- Red (confidential version notified same day) (the ‘ Bemba et al. Trial Judgment’), para. 202. 62 Ngudjolo Appeal Judgment , para. 168; Bemba et al. Trial Judgment , paras 202, 204. See also ICTY, Appeals Chamber, The Prosecutor v. Popović et al. , Judgement , 30 January 2015, IT-05-88-A, para. 1243, n. 3265 and references cited therein. 63 Defence Written Submissions, para. 8.

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requirement of corroboration irrespective of the type of evidence or the fact to be established on its basis. This is not to say that corroboration will never have a role to play when assessing a witness’s credibility and the reliability of his or her testimony. 64 It is indeed one of many potential factors relevant to a chamber’s assessment. A chamber may find, in the specific circumstances of the case, that corroboration of a particular witness’s testimony – or part thereof – is needed for it to be convinced of its 65 reliability and credibility. However, this does not mean that corroboration is required as a matter of law when evaluating the testimony of any witness.

V. THE EIGHT INCIDENTS

Applicable law – Article 70(1)(c) of the Statute

43 Article 70(1)(c) of the Statute provides:

The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally:

[…] Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence

66 44. As previously held, article 70(1)(c), first alternative, of the Statute (‘corruptly influencing a witness’) proscribes any conduct that may have (or is expected by the perpetrator to have) an impact or influence on the testimony to be given by a witness. Its purpose is to protect the reliability of testimonial evidence before the Court and, 67 more generally, the integrity of the proceedings before the Court.

64 Bemba et al. Appeal Judgment , para. 1084; Ngudjolo Appeal Judgment , para. 168; Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction , 1 December 2014, ICC-01/04-01/06-3121-Red (A5) (confidential version notified same day) (the ‘ Lubanga Appeal Judgment’), para. 218. See also ICTR, Appeals Chamber, The Prosecutor v. Nchamihigo , Judgement , 18 March 2010, ICTR-01-63-0345 (the ‘ Nchamihigo Appeal Judgment’), para. 47. 65 Bemba et al. Appeal Judgment , para. 1084; Ngudjolo Appeal Judgment , para. 168; Lubanga Appeal Judgment , para. 218. See also Nchamihigo Appeal Judgment , para. 47. 66 Bemba et al. Trial Judgment , para. 43; Bemba et al. Confirmation Decision , para. 30. 67 Bemba et al. Trial Judgment , para. 43.

No: ICC-01/09-01/20 16/81 15 July 2021

45 The perpetrator’s interference with the ‘witness’, as contemplated under article 70(1)(c) of the Statute, implies that he or she seeks to deter the witness from giving full evidence or seeks in any way to unduly influence the nature of the witness’s testimonial evidence. Decisive in this regard is the perpetrator’s expectation. 68 46. For the purposes of article 70(1)(c) of the Statute, the term ‘witness’ must be 69 understood broadly, taking into account the context and purpose of the provision. The term ‘witness’ in article 70(1)(c) of the Statute requires a broader understanding of the concept than the one used in article 70(1)(a) of the Statute or in the protocols on 70 witnesses adopted in each case, which have different purposes. A ‘witness’ within the meaning of article 70(1)(a) of the Statute is a person appearing before the Court, either 71 in person or by means of audio or video technology, who attests to factual allegations 72 according to his or her personal knowledge. For the purposes of Article 70(1)(c) of the Statute, the term ‘witness’ must also encompass ‘potential witnesses’, which includes persons who know or are believed to know information that may be relevant to the proceedings before the Court, regardless of whether or not such person has been 73 previously contacted by either party. 47. With regard to the actus reus of ‘influencing a witness’, the Chamber notes that the Statute does not describe any specific form of such ‘influencing’ but seeks to 74 encompass any conduct via an open-ended provision. Article 70(1)(c) of the Statute is therefore to be construed broadly, allowing many different modes of commission capable of influencing the nature of the witness’s evidence to be captured thereunder. 75 The most obvious form of ‘influencing’ may be seen in bribing witnesses, which encompasses any ‘inducement offered to procure illegal or dishonest action or decision in favour of the giver’, such as paying money, providing goods, rewards, gifts or

68 Bemba et al. Trial Judgment , para. 44. 69 Bemba et al. Appeal Judgment , para. 721. 70 Bemba et al. Appeal Judgment , para. 721 referring to Bemba et al. Trial Judgment , para. 44. 71 Article 69(2) of the Statute and rule 67 of the Rules. 72 Bemba et al. Trial Judgment , para. 20 referring to Trial Chamber II, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Directions for the conduct of proceedings and testimony in accordance with rule 140 , 1 December 2009, ICC-01/04-01/07-1665-Corr, para. 71(a). 73 Bemba et al. Appeal Judgment , para. 721. 74 Bemba et al. Trial Judgment , para. 44, n. 80 and references cited therein. 75 Bemba et al. Trial Judgment , para. 45, n. 82 and references cited therein .

No: ICC-01/09-01/20 17/81 15 July 2021

76 making promises. Other forms of ‘influencing’ can be seen in pressuring, intimidating

or threatening witnesses, or causing injuries aimed at procuring a particular testimony

77 from the witnesses.

48 The use of the word ‘corruptly’ signifies that the relevant conduct is aimed at

contaminating the witness’s testimony. In this context, and with a view to drawing a

distinction between permissible conduct and conduct considered to fall under the

purview of article 70(1)(c) of the Statute, it is essential to pay heed to the legal

78 framework which contextualises the conduct of the perpetrator. For example, when

assessing the nature of contacts with witnesses, the Chamber must bear in mind the

regime regulating those contacts, such as decisions on witness preparation and/or

79 witness familiarisation. Likewise, payments to witnesses must be assessed in the light

of their purpose and whether the perpetrator has adhered to the Court’s applicable

80 directions and guidelines.

49 Finally, the provision penalises the improper conduct of the perpetrator who

intends to influence the evidence before the Court and does not require proof that the

81 conduct had an actual effect on the witness. It is not required for this offence that the

criminal conduct actually influences the witness in question – the offence can be

82 complete even if the witness refuses to be influenced by the conduct in question. This

is so because the provision penalises the conduct of the physical perpetrator who, from

83 his or her vantage point, seeks to manipulate the evidence given by the witness.

84 Whether the witness met the perpetrator’s intentions is irrelevant in this regard. The

offence of corruptly influencing a witness is constituted independently of whether the

76 Bemba et al. Trial Judgment , para. 45, n. 83 referring to ICTR, The Prosecutor v. Nshogoza , Judgement , 7 July 2009, ICTR-07-91-T, para. 192 and to ICTY, The Prosecutor v. Beqaj , Judgement on Contempt Allegations , 27 May 2005, IT-03-66-T-R77, para. 18. 77 Bemba et al. Trial Judgment , para. 45, n. 85 and references cited therein. 78 Bemba et al. Trial Judgment , para. 47. 79 Bemba et al. Appeal Judgment , para. 737; Bemba et al. Trial Judgment , para. 47. 80 Bemba et al. Trial Judgment , para. 47. 81 Bemba et al. Trial Judgment , para. 48, n. 87 and references cited therein. 82 Bemba et al. Appeal Judgment , para. 737; Bemba et al. Trial Judgment , para. 48, n. 88 and references cited therein. 83 Bemba et al. Trial Judgment , para. 48. 84 Bemba et al. Trial Judgment , para. 48 referring to article 434-15 of the French Penal Code, article 377 of the Italian Penal Code, Section 344(1)(d) of the Slovak Penal Code, and section 159 of the German Criminal Code.

No: ICC-01/09-01/20 18/81 15 July 2021

pursued impact or influence is actually achieved and must therefore be understood as a

85 conduct crime, not a result crime.

50 Anybody can commit the offence under article 70(1)(c) of the Statute. The

86 physical perpetrator need not be a participant in the proceedings.

51 As regards the mens rea , pursuant to article 70(1)(c) of the Statute, the physical

87 perpetrator must have ‘intentionally’ corruptly influenced the witness. This means

that article 70(1)(c) of the Statute is fulfilled if the perpetrator knows that his or her

actions will bring about the material elements of the offence, namely corruptly

influencing the witness, with the purposeful will (intent) or desire to bring about those

88 material elements of the offence. Article 70 of the Statute do not require the finding

89 of a special intent element to undermine the administration of justice. The statutory

provisions do not encompass any additional evidential requirement that the administration of justice be ‘harmed’ or that the offence be committed to interfere with

the administration of justice. The offences are of conduct and the harm is captured in

the illicit and deliberate conduct of the perpetrator to tamper with the reliability of the

90 evidence. It is an obvious consequence of the acts committed under article 70(1)(c) of

91 the Statute that the administration of justice is interfered with and thereby harmed.

Factual Findings

52 In 2007, Kenya held general elections opposing the Orange Democratic

Movement (hereinafter ‘ODM’), led by Raila Odinga and inter alia William Samoei

92 Ruto (hereinafter ‘Mr Ruto’), and the Party of National Unity (hereinafter ‘PNU’),

led by incumbent President Mwai Kibaki (hereinafter ‘Mr Kibaki’) and inter alia Uhuru

93 Kenyatta (hereinafter ‘Mr Kenyatta’).

85 Bemba et al. Confirmation Decision , para. 30. 86 Bemba et al. Trial Judgment , para. 49. 87 Bemba et al. Appeal Judgment , para. 677; Bemba et al. Trial Judgment , para. 26. 88 Bemba et al. Trial Judgment , para. 50. 89 Bemba et al. Appeal Judgment , para. 678; Bemba et al. Trial Judgment , paras 30-31. 90 Bemba et al. Trial Judgment , para. 31. 91 Bemba et al. Trial Judgment , para. 31 referring to ICTY, Specially Appointed Chamber, The Prosecutor v. Hartmann , Judgment on Allegations of Contempt , 14 September 2009, IT-02-54-R77.5, para. 53. 92 Commission of Inquiry into Post-Election Violence, Report, KEN-OTP-0001-0364 (the ‘CIPEV Report’), pp. 0508, 0547. 93 CIPEV Report, p. 0449.

No: ICC-01/09-01/20 19/81 15 July 2021

53 The election results, which named Mr Kibaki as President, heightened existing

tensions between Kenya’s ethnic groups, particularly the Kalenjin and the Kikuyu

94 people. The PNU’s victory, amidst disputed circumstances, led to widespread

95 violence in the country. The attacks largely targeted members of ethnic groups viewed

as supporting the incumbent president or the PNU party, such as members of the Kikuyu

96 community and PNU Kalenjin supporters viewed as traitors.

54 Following the post-election violence, Mr Ruto and Joshua Arap Sang (hereinafter

‘Mr Sang’) were charged with six counts of crimes against humanity, 97 and Mr

98 Kenyatta with five counts of crimes against humanity. On 13 March 2015, Trial

Chamber V(B) terminated the proceedings against Mr Kenyatta upon the Prosecution’s

99 notice of withdrawal of charges due to insufficient evidence. The Trial Chamber noted

that, ‘pursuant to Article 70 of the Statute […] the Court retains jurisdiction over any

interference with a witness or with the collection of evidence.’ 100

55 On 5 April 2016, Trial Chamber V(A), by majority, vacated the charges against

101 Mr Ruto and Mr Sang ‘without prejudice to their prosecution afresh in [the] future’.

The majority noted that the accused had ‘profit[ed] from the interference [of witnesses]

by the falling away of several key witnesses that th[e] Chamber found to have been

102 interfered with’. Judge Herrera Carbuccia, in her dissenting opinion, equally noted

103 the prior findings of the Main Case Chamber with regard to witness interference.

56 The Chamber notes that in 2012, (hereinafter

‘P-0397’), , provided evidence to the Prosecutor regarding the

94 CIPEV Report, pp. 0406, 0415, 0450. 95 CIPEV Report, pp. 0370, 0415, 0450, 0721. 96 CIPEV Report, pp. 0371, 0422, 0442, 0466-0467, 0720-0721. 97 Ruto and Sang Confirmation Decision , p. 138. 98 Muthaura et al. Confirmation Decision , para. 428. 99 Trial Chamber V(B), The Prosecutor v. Uhuru Muigai Kenyatta , Decision on the withdrawal of charges against Mr Kenyatta (the ‘ Kenyatta Decision on the withdrawal of charges’), 13 March 2015, ICC-01/09-02/11-1005. 100 Kenyatta Decision on the withdrawal of charges , para. 10. 101 Trial Chamber V(A), The Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Decision on Defence Applications for Judgments of Acquittal (the ‘Decision on Acquittal’), 16 June 2016, ICC- 01/09-01/11-2027-Red-Corr (confidential corrected version notified same day, original version filed on 5 April 2016), p. 1. 102 Ruto and Sang Decision on Acquittal , Reasons of Judge Fremr, para. 148. 103 Trial Chamber V(A), The Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Dissenting Opinion of Judge Herrera Carbuccia , 5 April 2016, ICC-01/09-01/11-2027-Anx1, para. 30.

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post-election violence (the ‘PEV’), Kenya, and meetings leading to the 2007

elections at which Mr Ruto and other ODM members and supporters allegedly incited

104

violence against non-ODM supporters as well as against Kikuyu people.

57 On 14 May 2013, the Prosecution informed Trial Chamber V(A) of P-0397’s

105

decision to withdraw as a Prosecution witness in the Ruto and Sang case. Despite

several attempts to clarify the circumstances of his withdrawal and despite P-0397’s

reassurances of his continued cooperation, the Prosecution was unable to meet with

106

P-0397.

107

58 The Chamber notes that in January 2014, as a result of threats to his life, P-0397

108

reached out to the Prosecution. Prosecution investigators met with him on 16 and 17

109

January 2014 and, after a preliminary discussion, conducted an interview

110

. Due to the assessed risk to his safety, P-0397

111

. Prosecution investigators were

112

due to meet with him on 10 March 2014.

104 P-0397, KEN-OTP-0074-0264-R01. 105 See Trial Chamber V(A), The Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Corrected and amended version of “Prosecution’s request under article 64(6)(b) and article 93 to summon witnesses” (ICC-01/09-01/11-1120-Conf-Exp) (the ‘Prosecution Request to summon witnesses in the Ruto and Sang case’), 5 December 2013, ICC-01/09-01/11-1120-Red2-Corr (confidential version notified on 28 November 2013), paras 38-41. 106 OTP Investigator Reports, KEN-OTP-0139-0095; KEN-OTP-0103-0081-R01; KEN-OTP-0139- 0099; KEN-OTP-0140-0033-R01; KEN-OTP-0159-0884, pp. 0902-0903, paras 68-72. 107 P-0397, KEN-OTP-0125-0322-R01, pp. 0327-0337, 0347, 0353-0358; OTP Investigator Report, KEN-OTP-0138-0531. (P-0397, KEN-OTP-0125-0322-R01, pp. 0326-0337, lines 107-513; OTP Investigator Report, KEN-OTP-0138-0531; OTP Investigator Report, KEN-OTP-0159-0884, p. 0903, para. 73). The Chamber finds that it is not (P-0397, KEN-OTP-0125-0322-R01, pp. 0346-0358, lines 791-1215; KEN-OTP-0125-0322-R01, p. 1195-1196; P-0397, KEN-OTP-0125-0571-R01, pp. 0599-0600, lines 972-1010) (OTP Investigator Report, KEN-OTP- 0129-0567-R01; Mr Gicheru, KEN-OTP-0159-0795, p. 0806, lines 345-362). This however does not affect the Chamber’s findings established below as to the interference with P-0397’s testimony. 108 OTP Investigator Report, KEN-OTP-0138-0531. 109 P-0397, KEN-OTP-0125-0322-R01, KEN-OTP-0125-0360-R01. 110 P-0397, KEN-OTP-0125-0375-R01, KEN-OTP-0125-0402-R01, KEN-OTP-0125-0434-R01, KEN- OTP-0125-0461-R01, KEN-OTP-0125-0488-R01, KEN-OTP-0125-0494-R01, KEN-OTP-0125-0499- R01, KEN-OTP-0125-0505-R01, KEN-OTP-0125-0518-R01, KEN-OTP-0125-0547-R01, KEN-OTP- 0125-0571-R01; Waiver of Rights, KEN-OTP-0124-0020-R01. 111 OTP Investigator Report KEN-OTP-0159-0884, p. 0906, para. 85. 112 OTP Investigator Report, KEN-OTP-0159-0884, p. 0906, paras 85-86.

No: ICC-01/09-01/20 21/81 15 July 2021

113

.

114

. Consequently, the Prosecution was unable to call P-0397 in the Ruto and

Sang case.

59 The Defence submits that the evidence related to P-0397, in particular, the

115

affidavit signed by P-0397 on 9 May 2013 and the Prosecution investigation reports, does not support the Prosecutor’s allegations that P-0397 withdrew as a Prosecution

witness as a result of Mr Gicheru’s,

116

117

corrupting influence or interference. The Defence further submits that explains the money P-0397 deposited into his bank account.

118

60 The Chamber relies on P-0397’s statements from January 2014 collected

119

together with the said affidavit, financial documents, and other corroborating evidence, which in its view support the Prosecutor’s allegations

as established below. Regarding P-0397’s statements from January 2014, the Chamber

120

recalls first its general statements concerning the credibility of witnesses. Next, the

Chamber finds that P-0397’s statements from January 2014 are internally consistent

and are partially corroborated by other evidence, including the statements of P-0516

and other witnesses. Moreover, P-0397 appeared forthright throughout his interview,

specifically regarding the extent and purpose of his interactions with Mr Gicheru and

his involvement in corruptly influencing or interfering with P-0516’s testimony.

113 OTP Investigator Reports: KEN-OTP-0125-0830; KEN-OTP-0126-0164-R01. ( See Corrigendum: Decision on Prosecution Request for Admission of Prior Recorded Testimony (the ‘Prior Recorded Statement Decision’), 28 August 2015, ICC-01/09-01/11-1938-Conf-Corr (original version filed on 19 August 2015, for a public redacted version see ICC-01/09-01/11-1938-Red-Corr ), para. 138). 114 OTP Investigator Reports: KEN-OTP-0149-0444; KEN-OTP-0129-0567-R01; KEN-OTP-0149- 0449-R01; KEN-OTP-0135-0446-R01; KEN-OTP-0144-0168-R01. 115 Affidavit, KEN-OTP-0124-0029. . 116 See P-0604, KEN-OTP-0117-1019-R01, p. 1024, para. 34. 117 Defence Written Submissions, paras 39-40. 118 Defence Written Submissions, paras 39-40. See OTP Investigator Reports: KEN-OTP-0139-0093; KEN-OTP-0139-0095. 119 P-0397, KEN-OTP-0125-0375-R01, KEN-OTP-0125-0402-R01, KEN-OTP-0125-0434-R01, KEN- OTP-0125-0461-R01, KEN-OTP-0125-0488-R01, KEN-OTP-0125-0494-R01, KEN-OTP-0125-0499- R01, KEN-OTP-0125-0505-R01, KEN-OTP-0125-0518-R01, KEN-OTP-0125-0547-R01, KEN-OTP- 0125-0571-R01 . 120 See paragraphs 40-42 above.

No: ICC-01/09-01/20 22/81 15 July 2021

61 Accordingly, the Chamber is convinced that between April 2013 and January

2014, Mr Gicheru offered P-0397 the sum of 5 million Ksh (about 45,261 euros at the

time) in cash instalments in exchange for withdrawing as Prosecution witness in the

Ruto and Sang case, of which Mr Gicheru then paid P-0397 a total of 1 million Ksh

(about 9,052 euros at the time). The Chamber finds that the facts detailed in the

following paragraphs are established.

121 62. On or about 20 April 2013, ,

122 visited P-0397 . On that occasion,

explained to P-0397 that there was a group of persons working for Mr Ruto

who were instructed to identify ICC witnesses and offer them money in exchange for

123 their withdrawal as Prosecution witnesses.

63 told P-0397 that would return to take P-0397 to meet

124 this group of people, who were based , Kenya.

64 On or about 26 April 2013, took P-0397 to meet

125 Mr Gicheru . After

126 introduced P-0397 to Mr Gicheru, Mr Gicheru spoke to P-0397 privately. P-0397

told Mr Gicheru that he was an ICC witness to which Mr Gicheru added that he had

127 heard that P-0397 was an ICC witness.

65 Mr Gicheru asked P-0397 to assist him by withdrawing as a witness against

128 Mr Ruto. Mr Gicheru told P-0397 that Mr Ruto wanted P-0397 to identify other

129 Prosecution witnesses and bring them to him (Mr Gicheru).

121 P-0397, KEN-OTP-0125-0402-R01, p. 0431, lines 20-34, p. 0432, line 1. 122 P-0397, KEN-OTP-0125-0402-R01, p. 0431, lines 8-20; p. 0432, lines 32-35; KEN-OTP-0125-0434- R01, p. 441, lines 226-240. 123 P-0397, KEN-OTP-0125-0402-R01, p. 0433, lines 2-6; KEN-OTP-0125-0434-R01, p. 0436, lines 40- 41, p. 0441, lines 247-249. 124 P-0397, KEN-OTP-0125-0434-R01, p. 0436, lines 45-46. 125 P-0397, KEN-OTP-0125-0434-R01, p. 0436, lines 53-55; p. 0436, lines 63-67; p. 0451, lines 598- 607, see also p. 0454, line 733; KEN-OTP-0125-0518-R01, p. 0521; KEN-OTP-0159-0585. 126 P-0397, KEN-OTP-0125-0434-R01, p. 0437, lines 79-104; p. 0456, lines 760-762; KEN-OTP-0125- 0518-R01, p. 0521, lines 74-75, 94-96. 127 P-0397, KEN-OTP-0125-0434-R01, p. 0437, lines 79-104. 128 P-0397, KEN-OTP-0125-0434-R01, p. 0437, lines 79-104, p. 0456, lines 774-776. 129 P-0397, KEN-OTP-0125-0434-R01, p. 0437, lines 79-104.

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66 Mr Gicheru asked P-0397 to state his price in exchange for his withdrawal as an

130 131

ICC witness. P-0397 requested 10 million Ksh (about 90,522 euros at the time).

132 133

joined the meeting. Mr Gicheru

explained that must be consulted regarding the money to be paid to

134

witnesses, and that Mr Ruto had given him and the authority to pay

135

witnesses. Mr Gicheru told that P-0397 was a witness and therefore had

136

to be paid. After some negotiation, they agreed on a sum of 5 million Ksh (about

137

45,261 euros at the time), which Mr Gicheru promised would be paid in cash

138

instalments. P-0397 requested that Mr Gicheru

139

but they refused. Mr Gicheru also gave

140 141

his business card to P-0397, who in turn handed it to Prosecution investigators.

67 On or about 27 April 2013, Mr Gicheru paid P-0397 a cash instalment of 600,000

142

Ksh (about 5,431 euros at the time). P-0397 kept 100,000 Ksh (about 905 euros at

the time) and deposited the remaining 500,000 Ksh (about 4,526 euros at the time) into

143

his bank account . He did so as he was afraid of getting robbed,

130 P-0397, KEN-OTP-0125-0434-R01, p. 0438, lines 107-115, p. 0457, line 802. 131 P-0397, KEN-OTP-0125-0434-R01, p. 0438, lines 107-115; KEN-OTP-0125-0518-R01, lines 74-75, 94-96. 132 See . 133 P-0397, KEN-OTP-0125-0434-R01, pp. 0438-0439, lines 123-142; p. 0458, lines 847-857; KEN- OTP-0125-0518-R01, p. 0521, lines 59-96, see also pp. 0523-0524, 178-196. It is not clear whether before or after P-0397 stated his price ( See P-0397, KEN-OTP-0125-0434-R01, p. 0458, lines 825-836). 134 P-0397, KEN-OTP-0125-0461-R01, pp. 0464-0465, lines 93-114. See also , KEN-OTP-0125-0518- R01, p. 0524, lines 200-202, 203-215. 135 P-0397, KEN-OTP-0125-0461-R01, p. 0465, lines 117-128; KEN-OTP-0125-0434-R01, p. 0457, lines 825-832. 136 P-0397, KEN-OTP-0125-0434-R01, pp. 0438-0439, lines 123-142. 137 P-0397, KEN-OTP-0125-0434-R01, p. 0438, lines 107-115, p. 0439, lines 154-156. 138 P-0397, KEN-OTP-0125-0434-R01, p. 0438, lines 107-115. 139 P-0397, KEN-OTP-0125-0461-R01, p. 0465, lines 137-138. 140 P-0397, KEN-OTP-0125-0434-R01, pp. 0451-053, lines 618-702; KEN-OTP-0125-0518-R01, pp. 0529-0530, lines 391-403. 141 P-0397, KEN-OTP-0125-0434-R01, pp. 0451-053, lines 618-702; Business card, KEN-OTP-0124- 0028. 142 P-0397, KEN-OTP-0125-0434-R01, p. 0439, lines 154-156; KEN-OTP-0125-0518-R01, pp. 0521- 0522, lines 105-119. See also P-0613, KEN-OTP-0111-0162, p. 0169, para. 36. 143 P-0397, KEN-OTP-0125-0461-R01, pp. 0462-0463, lines 20-58, p. 0463, lines 64-70, p. 0464, lines 72-79; KEN-OTP-0125-0518-R01, pp. 0521-0522, lines 105-119; corroborated by P-0397’s bank statement record, showing he deposited 500,000 Ksh : Financial document, KEN-OTP- 0124-0021, p. 0023.

No: ICC-01/09-01/20 24/81 15 July 2021

despite Mr Gicheru’s warning not to deposit the money into the bank to avoid detection

by the ‘ICC people’. 144

68 On or about 30 April 2013, P-0397 met with Mr Gicheru

145 . Mr Gicheru paid P-0397 a second cash instalment of 400,000 Ksh (about

146 3,620 euros at the time). , P-0397 deposited an amount of 400,000

147 Ksh (about 3,620 euros at the time) into his bank account. Mr Gicheru

told P-0397 that they would give him the remaining 4 million later, but

148 never did. Mr Gicheru told P-0397 that they did not want him

to continue cooperating with the ICC and that he should start the withdrawing

149 process. Mr Gicheru explained that regarding the withdrawal

process, they would find a lawyer who would put in writing P-0397’s decision to

150 withdraw from the Main Case.

69 On 9 May 2013, P-0397 went to , where he was

introduced by Mr Gicheru to a lawyer named

151 . Mr Gicheru instructed to

prepare an affidavit based on the discussion that Mr Gicheru,

. 152 P-0397 signed a letter giving the power to

153 act for him before the ICC on this matter. On the same day, P-0397 also signed an

affidavit stating that he no longer intended ‘to testify against any accused persons’

before the ICC, which the Chamber understands to include Mr Ruto and Mr Sang, and

wished to withdraw his testimony against them, which was sent to the Prosecution by

144 P-0397, KEN-OTP-0125-0461-R01, pp. 0476-0478, lines 540-584. 145 P-0397, KEN-OTP-0125-0518-R01, p. 0522, lines 120-135. 146 P-0397, KEN-OTP-0125-0434-R01, p. 0439, lines 154-156, p. 0438, lines 118-121. 147 P-0397, KEN-OTP-0125-0518-R01, p. 0522, lines 120-135; KEN-OTP-0125-0461-R01, p. 0463, lines 51-52, p. 0464, lines 79-92; corroborated by P-0397’s bank statement record, showing he deposited 500,000 Ksh (Financial document, KEN-OTP-0124-0021, p. 0024). The Chamber relies on P-0397’s declaration that the money was given to him by Mr Gicheru and thus rejects the Defence’s submissions on this point (Defence Written Submissions, para. 39). 148 P-0397, KEN-OTP-0125-0434-R01, p. 0439, lines 154-156; KEN-OTP-0125-0461-R01, p. 0465, lines 138-139. 149 P-0397, KEN-OTP-0125-0461-R01, p. 0466, lines 145, 151-156. 150 P-0397, KEN-OTP-0125-0461-R01, p. 0466, lines 145, 151-156, 168-170. 151 P-0397, KEN-OTP-0125-0434-R01, p. 0439, lines 163-173; KEN-OTP-0125-0461-R01, pp. 0466- 0468, lines 151-246; KEN-OTP-0125-0518-R01, pp. 0530-0531, lines 410-413, 448. 152 P-0397, KEN-OTP-0125-0461-R01, pp. 0466-0468, lines 151-248; KEN-OTP-0125-0518-R01, pp. 0530-0531, lines 421-423, 453-459. 153 P-0397, KEN-OTP-0125-0402-R01, p. 0429, lines 10-34, p. 0430, lines 1-37, p. 0431, lines 1-4; Letter to the lawyer, KEN-OTP-0124-0030.

No: ICC-01/09-01/20 25/81 15 July 2021

154

. The affidavit was prepared in English

and

155

.

70 On 7 December 2013, P-0397 met with Mr Gicheru

156

.

Mr Gicheru asked P-0397 whether he was still in touch with the ICC and accused him

157

of wanting, along with other individuals, to send Mr Ruto to jail. Mr Gicheru became

aggressive, indicating that he believed P-0397 was trying to have him arrested by the

158

ICC. The meeting ended when Mr Gicheru was calmed down by the second man and

159

P-0397 left the meeting. As a result of this exchange, P-0397 felt that he was in

160

danger and could be killed.

71 The Chamber notes that in 2012

(hereinafter ‘P-0516’) provided evidence to the Prosecutor regarding the organisation

of the PEV, in Kenya, and Mr Ruto and other ODM members and supporters’ rethoric

161

against non-ODM supporters and Kikuyu people.

72 On 6 July 2014, P-0516 was scheduled to attend a meeting with Court officials

162

regarding his in-court testimony, but he failed to do so and ceased all

154 P-0397, KEN-OTP-0125-0402-R01, pp. 0425-0429, p. 0425, lines 33-36, p. 0426, line 2, p. 0428, lines 28-33, p. 0428, line 36, p. 0428, lines 2-9; Letter to the ICC and Letter to the lawyer, KEN-OTP- 0124-0030; Affidavit, KEN-OTP-0124-0029; P-0397, KEN-OTP-0125-0434-R01, p. 0439, lines 163- 173; KEN-OTP-0125-0461-R01, p. 0467, lines 205-207; KEN-OTP-0125-0518-R01, p. 0529, lines 386- 390, see also Prosecution Request to summon witnesses in the Ruto and Sang case , para. 40. The Chamber notes that Mr Gicheru were also involved in the preparation of an affidavit in English signed by P-0341 and for the purposes of withdrawing as an ICC witness (P-0341, KEN-OTP- 0150-0255-R01, p. 0268, para. 68). 155 P-0397, KEN-OTP-0125-0461-R01, p. 0467, lines 191-199. 156 P-0397, KEN-OTP-0125-0461-R01, pp. 0469-0470, lines 262-296; KEN-OTP-0125-0571-R01, pp. 0577-0582, lines 184-329). See also Material related P-0397, KEN-OTP-0125-0248, p. 0260, lines 363- 367. The Chamber note that other witnesses mentionned having contacts with ( See ). 157 P-0397, KEN-OTP-0125-0461-R01, p. 0470, lines 299-316. 158 P-0397, KEN-OTP-0125-0461-R01, p. 0471, lines 322-336; KEN-OTP-0125-0518-R01, p. 0533, lines 538-546. 159 P-0397, KEN-OTP-0125-0461-R01, pp. 0471-0472, lines 322-367 . 160 P-0397, KEN-OTP-0125-0461-R01, pp. 0471-0472, lines 322-367; KEN-OTP-0125-0518-R01, p. 0533, lines 538-546. 161 P-0516, KEN-OTP-0087-0031-R01. 162 OTP Investigator Report, KEN-OTP-0159-0884, p. 0911, para. 102.

No: ICC-01/09-01/20 26/81 15 July 2021

163

communication. Subsequently, Trial Chamber V(A) issued a summons for his

164

appearance in court and as a result P-0516 testified between 22 and

165

26 September 2014. During his in-court testimony, P-0516 stated that the evidence

that he provided in his original witness statement was false, and that he had been told

166

by what to say. Under oath, P-0516 also testified that he did not

167

know a lawyer named ‘Paul Gicheru’, that he had not visited

168

, and that he had not been offered or paid any money to withdraw as a

169 170

Prosecution witness. As a consequence, P-0516 was declared hostile.

73 After several attempts by Prosecution investigators to reach and meet with P-0516

171

to discuss his security situation, P-0516 resumed contact with the Prosecution in

172 173

and met with Prosecution investigators from ,

on which occasion an interview was

174

conducted.

74 The Chamber notes that P-0516’s willingness to cooperate with the Prosecution

175

has vacillated, that he has changed the facts provided to Prosecution investigators

163 OTP Investigator Reports, KEN-OTP-0116-0479; KEN-OTP-0107-0288. 164 Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, 30 April 2014, ICC-01/09-01/11-1274-Corr2 (original version notified on 17 April 2014). 165 P-0516, Transcripts of hearings, from 23 to 26 September 2014, ICC-01/09-01/20-T-002-Conf-ENG to ICC-01/09-01/20-T-006-Conf-ENG (for a public version see ICC-01/09-01/11-T-142-Red-ENG , ICC-01/09-01/11-T-143-Red-ENG , ICC-01/09-01/11-T-144-Red-ENG , ICC-01/09-01/11-T-145-Red- ENG ). 166 See e.g. P-0516, Transcript of hearing, 23 September 2014, ICC-01/09-01/11-T-142-Red-ENG , p. 42 et seq ; Transcript of hearing, 25 September 2014, ICC-01/09-01/11-T-144-Red-ENG (‘T-144’), p. 73, line 25, p. 74, lines 1-6. 167 P-0516, T-144 , p. 71, lines 18-20. See also p. 50, lines 20-21. 168 P-0516, T-144 , p. 72, lines 15-25, p. 73, lines 1-5. 169 P-0516, T-144 , p. 73, lines 18-24. 170 P-0516, T-144 , p. 32, line 17 to p. 33, line 8. 171 OTP Investigator Reports: KEN-OTP-0138-0075-R01; KEN-OTP-0138-0081-R01; KEN-OTP- 0138-0089-R01; KEN-OTP-0129-0702. 172 OTP Investigator Report, KEN-OTP-0148-0970. 173 OTP Investigator Report, KEN-OTP-0148-070; P-0516, KEN-OTP-0150-0621-R01. 174 P-0516, KEN-OTP-0150-0637-R01; KEN-OTP-0150-0658-R01; KEN-OTP-0150-0664-R01; KEN- OTP-0150-0684-R01; KEN-OTP-0150-0706-R01; KEN-OTP-0150-0728-R01; KEN-OTP-0150-0734- R01; KEN-OTP-0150-0760-R01; KEN-OTP-0150-0778-R01; KEN-OTP-0150-0789-R01; KEN-OTP- 0150-0800-R01; KEN-OTP-0150-0805-R01; KEN-OTP-0150-0817-R01; KEN-OTP-0150-0837-R01; KEN-OTP-0150-0868-R01; KEN-OTP-0150-0873-R01; KEN-OTP-0150-0893-R01; KEN-OTP-0150- 0921-R01; KEN-OTP-0150-0951-R01; KEN-OTP-0150-0980-R01; KEN-OTP-0150-0995-R01. 175 OTP Investigator Reports, KEN-OTP-0116-0495-R01; KEN-OTP-0107-0288.

No: ICC-01/09-01/20 27/81 15 July 2021

176 regarding the Main Case as well as information about his contacts with

177 Mr Gicheru, and that, during the interview, he seemed not entirely forthright

specifically regarding the extent and purpose of his interactions with Mr Gicheru and

178 his contact with P-0613. The Chamber takes also note of the Prior Recorded

Statements Decision in which Trial Chamber V(A) found that P-0516 had been subject

179 to improper interference by individuals including . However, the

Chamber recalls that it will assess the credibility of a witness as well as the evidence

180 before it independently and draw its own conclusions.

75 The Chamber is still of the view that P-0516’s statements from

can be, at least in part, relied upon in the case

at hand. The Chamber recalls first of all its general statements concerning the credibility

181 of witnesses. Next, the Chamber takes into account two elements which in its view

buttresses P-0516’s credibility and the reliability of portions of the said statements.

Firstly, at the beginning of the interview, the Prosecution investigators made clear to P-

0516 that was not contingent upon being

182 interviewed. P-0516 proceeded with the interview nonetheless. Secondly, the

evidence provided by P-0516 is also corroborated by the statements of other witnesses,

183 such as P-0397. In the Chamber’s view, the abovementioned elements support the

reliance on portions of P-0516’s statements from to the effect that he was

promised and paid money by Mr Gicheru to withdraw as a Prosecution witness, as

established below.

176 See e.g. P-0516, Transcript of hearing, 23 September 2014, ICC-01/09-01/11-T-142-Red-ENG , p. 38, lines 23-25, p. 39, lines 1-9; Transcript of hearing, 24 September 2014, ICC-01/09-01/11-T-143-Red- ENG , p. 40, lines 1-25, p. 41, lines 1-6. 177 See paragraph 71 above . 178 Compare P-0516, KEN-OTP-0150-0684-R01, p. 0688, lines 145-146; KEN-OTP-0150-0728-R01, and KEN-OTP-0150-0760-R01, pp. 0775-0777 with P-0516, KEN-OTP-0150-0800-R01 p. 0803, lines 93, 96, KEN-OTP-0150-0817-R01, and KEN-OTP-0150-0837-R01. The Chamber notes that, when the interview resumed , P-0516 admitted that he had been lying to the Prosecution (P-0516, KEN-OTP-0150-0817-R01, p. 0820, lines 74-75, 78) but that he had realised that it was ‘very important that [he] says[s] everything’ (P-0516, KEN-OTP-0150-0817-R01, p. 0820, lines 81-82, 85, 87). See also Defence Written Submissions, para. 47. 179 Prior Recorded Statement Decision, para. 55. 180 See paragraph 29 above. 181 See paragraphs 40-42 above. 182 P-0516, KEN-OTP-0150-0684-R01, p. 0686, lines 58-64. See also P-0516, KEN-OTP-0150-0873- R01, pp. 0888-0890, lines 509-580. 183 See paragraph 87 below.

No: ICC-01/09-01/20 28/81 15 July 2021

184

76 During one of the meetings in April or May 2013

185 186

, Mr Gicheru asked P-0397 if he knew of other ICC witnesses. In P-0397’s

presence, Mr Gicheru directed to locate an ICC witness – referring to P-0516 –

187

. P-0397 told them that he had

188

seen P-0516 , Kenya. suggested that since he was not on good

189 190

terms with P-0516, P-0397 should contact him and ask him to withdraw. As a

result, Mr Gicheru and instructed P-0397 to locate P-0516 and bring him to

191

.

77 told P-0397 that if he located any witnesses, he would receive

192

additional money and that had received payments for

193

identifying and locating other Prosecution witnesses.

194

78 Subsequently, P-0397 met with P-0516 . P-0397 told P-0516 that he

195

had heard that P-0516 was an ICC witness and that he had been in contact with

196

P-0613. P-0397 told P-0516 that he could get money, such as 500,000 Ksh (about

197

4,526 euros at the time), but that he had to meet and talk with Mr Gicheru first.

198

P-0516 agreed to P-0397’s proposal to meet Mr Gicheru. P-0397 then reported

184 P-0397, KEN-OTP-0125-0518-R01, pp. 537-539, lines 680-734. 185 P-0397, KEN-OTP-0125-0461-R01, p. 0474, lines 466-469. 186 P-0397, KEN-OTP-0125-0461-R01, p. 0474, lines 438-452; KEN-OTP-0125-0518-R01, p. 0523, lines 144-147. 187 P-0397, KEN-OTP-0125-0518-R01, pp. 0535-0536, lines 577-639; KEN-OTP-0125-0461-R01, p. 0474, lines 451. 188 P-0397, KEN-OTP-0125-0518-R01, p. 0536, line 631. 189 P-0397, KEN-OTP-0125-0518-R01, p. 0536, lines 638-639. 190 P-0397, KEN-OTP-0125-0461-R01, p. 0474, lines 459-461, 466-469. 191 P-0397, KEN-OTP-0125-0518-R01, p. 0535, lines 609-612, p. 0537, lines 665-669, p. 0540, lines 786-800. 192 P-0397, KEN-OTP-0125-0461-R01, p. 0475, lines 475-476, lines 502-505; KEN-OTP-0125-0518- R01, p. 0534, lines 571-572, p. 0544, lines 915-916. 193 P-0397, KEN-OTP-0125-0518-R01, p. 0544, lines 922-923. 194 P-0397, KEN-OTP-0125-0461-R01, p. 0475, lines 476; KEN-OTP-0125-0518-R01, pp. 0536-0537, lines 643-659; P-0516, KEN-OTP-0150-0817-R01, pp. 0820-0822, lines 93-145. P-0397 claims they met ‘by chance’ whereas P-0516 claims P-0397 called him and they arranged to meet ( compare P-0397, KEN-OTP-0125-0518-R01, p. 0536, line 650 with P-0516, KEN-OTP-0150- 0817-R01, pp. 0820-0821, lines 93-121). 195 P-0397, KEN-OTP-0125-0518-R01, p. 0539, line 741. See also P-0516, KEN-OTP-0150-0837-R01, p. 0847, line 326. 196 P-0397, KEN-OTP-0125-0518-R01, p. 0539, lines 746-747. 197 P-0397, KEN-OTP-0125-0518-R01, p. 0540, lines 774-785; P-0516, KEN-OTP-0150-0837-R01, p. 0855, line 624. 198 P-0397, KEN-OTP-0125-0518-R01, pp. 0539-0540, lines 753-785. KEN-OTP-0150-0817-R01, p. 0822, line 147.

No: ICC-01/09-01/20 29/81 15 July 2021

P-0516’s agreement to meet with Mr Gicheru, who said he would find a date to meet

199

with P-0516.

79 P-0397 took P-0516 to , introduced P - 0516 to

200

Mr Gicheru, and left . There Mr Gicheru and P-0516 had a private

201

discussion.

80 During the first or second meeting, Mr Gicheru offered P-0516 the sum of

800,000 Ksh (about 7,241 euros at the time), which would be paid in cash and in

202 203

instalments, in exchange for his withdrawal as a witness from the Main Case.

81 Mr Gicheru met with P-0516 approximately four or five times and paid him a

204

total of at least 500,000 Ksh (about 4,526 euros at the time).

82 , (hereinafter ‘P-0341’, ) saw P-0397 and P-0516 several times, together with . On one

of these occasions, they told P-0341 that they had recanted their statements because of

the money they received, but complained that more money had been promised than delivered, and were thus considering to ‘return to the ICC’.

205

199 P-0397, KEN-OTP-0125-0518-R01, p. 0537, lines 665-669. 200 P-0397, KEN-OTP-0125-0461-R01, p. 0475, lines 484-489; KEN-OTP-0125-0518-R01, p. 0541, lines 816-825; P-0516, KEN-OTP-0150-0817-R01, p. 0822, lines 152-169, pp. 0826-0827, lines 278- 316. 201 P-0516, KEN-OTP-0150-0817-R01, p. 0826, lines 309-312; P-0397, KEN-OTP-0125-0518-R01, p. 0541, lines 816-825. 202 P-0516, KEN-OTP-0150-0817-R01, p. 0823, lines 195-209; KEN-OTP-0150-0837-R01, pp. 0848- 0849, lines 384-399; p. 0850, lines 433-434; P-0397, KEN-OTP-0125-0518-R01, p. 0541, lines 830- 838. 203 Compare P-0516, KEN-OTP-0150-0817-R01, p. 0824, lines 222-232 with P-0516, KEN-OTP-0150- 0837-R01, p. 0846, lines 298-303. P-0516 subsequently said that the reason for receiving that money was communicated to him by Mr Gicheru indirectly, i.e. through P-0397 (P-0516, KEN-OTP-0150-0837- R01, pp. 0847-0848, lines 346-383). P-0516 mentioned to P-0397 the payment amount that he and Mr Gicheru agreed upon, but P-0397 could not recall if the exact amount was 400,000 Ksh (about 3,620 euros at the time), 500,000 Ksh (about 4,526 euros at the time), 600,000 Ksh (about 5,431 euros at the time) or 800,000 Ksh (about 7,241 euros at the time) (P-0397, KEN-OTP-0125-0461-R01, p. 0475, lines 484-489; KEN-OTP-0125-0518-R01, p. 0541, lines 826-838). 204 P-0516, KEN-OTP-0150-0817-R01, pp. 0822-0824, lines 156-232, pp. 0826-0833, lines 278-551; KEN-OTP-0150-0837-R01, pp. 0839-0843, lines 40-195, pp. 0848-0852, lines 384-492, pp. 0857-0858, lines 664-707; P-0397, KEN-OTP-0125-0518-R01, pp. 0543, lines 889-899. See also P-0613, KEN- OTP-0111-0162, p. 0169, para. 36; P-0800, KEN-OTP-0135-0200, p. 0204, lines 119-120. 205 P-0341, KEN-OTP-0150-0255-R01, p. 0277, para. 119. P-0341 between April 2013 and April 2014, especially between May and July 2013 (P-0341, KEN- OTP-0150-0255-R01, p. 277, para. 117, p. 266, para. 58, p. 0268, para. 68, p. 0269, paras 74-75).

No: ICC-01/09-01/20 30/81 15 July 2021

206

83 Thereafter, P-0516 withdrew as a Prosecution witness in the Main Case.

84 P-0516 and P-0397 could not refuse the offer to receive money from Mr Gicheru because otherwise ‘these people might come after [them]’.

207

P-0516 stopped going to

to receive money, despite being paid less than originally

208

promised, because it was becoming dangerous.

85 P-0397 is unsure whether P-0516 received the money promised but he remembers

209

an occasion where P-0516 told him that he had received the total sum promised.

86 P-0397 did not receive any of the payment he was promised for introducing

210

P-0516 to Mr Gicheru. When P-0397 asked for this payment, Mr Gicheru avoided

211

the issue.

87 The Chamber finds that the allegations regarding Mr Gicheru’s payments to

P-0516 in exchange for withdrawing as a Prosecution witness are corroborated by

212

P-0397 as well as by other witnesses.

88 The Chamber notes that (hereinafter ‘P-0613’, ) testified for the Prosecution in the Main Case regarding the PEV in Kenya

213

before Trial Chamber V(A) between 18 and 20 June 2014.

206 P-0516, KEN-OTP-0150-0837-R01, pp. 0852-0854, lines 501-592. Compare with P-0516, KEN- OTP-0150-0706-R01, p. 0708, pp. 0713-0715. The Prosecution indicated that they are not in possession of either the letter or the affidavit containing P-0516’s decision to withdraw from the ICC proceedings ( See , DCC, para. 108. See also, P-0516, Transcript of hearing, 25 September 2014, ICC-01/09-01/20-T- 005-Conf-Red-ENG, p. 74, lines 12-25 and Letter to the ICC, KEN-OTP-0112-0126). In his in-court testimony, P-0516 testified that prepared an affidavit on his behalf concerning his decision to withdraw from the case and to recant his previous statement (P-0516, T-144 , p. 50, lines 9, 13-14). See also P-0397, KEN-OTP-0125-0518-R01, p. 0542, lines 839-860. 207 P-0516, KEN-OTP-0150-0837-R01, p. 0847, lines 328, 330-331, 339, 341, p. 0848, lines 374-376; KEN-OTP-0150-0817-R01, p. 0823, lines 1921-193, p. 0824, lines 217-219. 208 P-0516, KEN-OTP-0150-0817-R01, p. 0824, lines 217-219. 209 P-0397, KEN-OTP-0125-0518-R01, p. 0543, lines 889-899. 210 P-0397, KEN-OTP-0125-0461-R01, p. 0475, lines 476, 490-496, 502-507; KEN-OTP-0125-0518- R01, pp. 0543-0544, lines 904-917. 211 P-0397, KEN-OTP-0125-0518-R01, pp. 0543-0544, lines 904-919; KEN-OTP-0125-0461-R01, p. 0475, lines 502-507. 212 P-0613, KEN-OTP-0102-0178, p. 0181, para. 18; KEN-OTP-0111-0162, p. 0169, para. 36; P-0800, KEN-OTP-0111-0140, p. 0148, paras 42-43. See Defence Written Submissions, para. 48. 213 P-0613, Transcripts of hearings, from 18 to 20 June 2014, ICC-01/09-01/20-T-013-Conf-Red-ENG to ICC-01/09-01/20-T-015-Conf-Red-ENG (for a public version see ICC-01/09-01/11-T-118-Red-ENG , ICC-01/09-01/11-T-119-Red-ENG , ICC-01/09-01/11-T-120-Red-ENG ).

No: ICC-01/09-01/20 31/81 15 July 2021

89 The Defence argues that the evidence related to P-0613 is ‘uncorroborated

hearsay evidence and double hearsay evidence’ from

214 P-0516, P-0800, and P-0495. The Defence also

argues that P-0613’s evidence is unreliable as it stems from her accounts of the

conversations she had with these witnesses, ,

215 as well as from the assumptions she had drawn from the said conversations. The

Defence further argues that these witnesses are unreliable and that the Prosecution made

216 no attempt to verify their evidence. The Defence refers notably to conclusions made

in the Main Case regarding P-0613’s evidence to argue that her evidence in the present

case is ‘uncorroborated hearsay and merits no weight’. 217

90 The Defence submits in particular that, contrary to what the Prosecution submits,

218 219 and

220 . The Defence also submits that

. 221

91 The Chamber notes that the evidence related to P-0613 stems from her phone

conversations with , P-0800, P-0516, P-0495, and P-0604

as well as text messages that she received from unidentified senders from April to

September 2013.

222 .

214 . See . 215 Defence Written Submissions, paras 62-63. See also , paras 25, 30. 216 Defence Written Submissions, para. 63. See also , para. 30. 217 Defence Written Submissions, para. 62. 218 See P-0613, KEN-OTP-0111-0162, p. 0169, para. 37; See Material related to P-0613, KEN-OTP- 0118-1927, pp. 1945-1950, lines 562-775. 219 See P-0613, KEN-OTP-0111-0162, p. 0169, para. 39; Material related P-0613, KEN-OTP-0118-1927, pp. 1950-1951, lines 779-793. 220 Defence Written Submissions, para. 24. 221 Defence Written Submissions, para. 25. 222 P-0613, KEN-OTP-0106-0910, p. 0915, para. 27. See also P-0613, KEN-OTP-0106-0922, p. 0925, para. 12.

No: ICC-01/09-01/20 32/81 15 July 2021

. The Chamber notes in that regard that,

223 . The Chamber also notes

, P-0613 gave an account of her phone conversations to the Prosecution in statements. The Prosecution investigators also memorialise in their investigation reports their phone conversations and meetings with P-0613, including certain phone calls she reported to them. The Chamber finally notes that the evidence related to P-0613 also stems from other witnesses’ accounts of their interactions with her or from their own experiences with the allegations at the heart of this case. 92. As to the assessment of P-0613’s evidence, the Chamber recalls first its general statements concerning the assessment of evidence, including the credibility of 224 witnesses, corroboration and hearsay evidence. 93. Next, the Chamber notes that the judges’ findings in the Main Case in relation to P-0613’s evidence related to the sufficiency of her knowledge and stresses that the allegations at the heart of the Main Case were entirely different from the charges brought by the Prosecutor in this case. Thus, the probative value assigned to P-0613’s evidence in the Main Case is not, by any means, indicative of the weight to be attached 225 to P-0613’s evidence in the current proceedings. The Chamber will assess the credibility of P-0613 as well as her evidence independently and will draw its own conclusions. 94. Moreover, the Chamber finds that insofar as certain parts of P-0613’s accounts contain indirect evidence about money offered to specific witnesses in exchange for 226 their withdrawals as Prosecution witnesses, her evidence in fact corroborates the allegations regarding P-0397, P-0495 and P-0800.

223 P-0613, KEN-OTP-0102-0178, p. 0181, para. 20. 224 See paragraphs 40-42 above. 225 The Chamber therefore rejects the Defence’s submissions in this regard (Defence Reply, para. 52). 226 See e.g. P-0613, KEN-OTP-0111-0162, p. 0169, para. 36. See Material related P-0613, KEN-OTP- 0118-1927, pp. 1945-1950, lines 562-775.

No: ICC-01/09-01/20 33/81 15 July 2021

95 The Chamber further finds that P-0613 also provides direct evidence of attempts by certain individuals to corruptly influence her decision to testify as a Prosecution witness and that part of her accounts are corroborated by other evidence. 96. As regards to P-0613’s evidence in general as well as other indirect evidence – 227 including the involvement of Mr Gicheru and , the Chamber finds that the evidence provided by P-0613 fits the overall pattern that emerges from the evidence regarding how individuals such as , P-0397, P-0516, P-0800, and P-0495 – were approached and in turn approached other potential Prosecution witnesses – to arrange meetings with individuals such as Mr Gicheru and in order to offer the Prosecution witnesses or potential witnesses money in exchange for their withdrawal as Prosecution witnesses and recantation of 228 prior statements given to the Prosecution. 97. The Chamber also finds that the Defence does not put forward any persuasive factors that would affect P-0613’s credibility or the reliability of her statements. In the Chamber’s view, P-0613 was rather straightforward in her statements and interactions with the Prosecution. P-0613’s statements are internally consistent, free of contradictions and, as already mentioned, they are partially corroborated by other evidence. Besides, there is no indication that P-0613 did not tell the truth concerning the allegations which form the subject of these proceedings. 98. With regards to the , the Chamber finds that the fact that they 229 might appear vague and cryptic to an outsider is the result of

230 231 232 . It is however clear from that P-0613 was able to

227 See . 228 See paragraph 186 below. The Chamber therefore rejects the Defence’s submissions in this regard (Defence Reply, para. 52). 229 See e.g. P-0613, KEN-OTP-0106-0922, p. 0926, para. 16. 230 See e.g. P-0613, KEN-OTP-0115-0216, p. 0222, para. 29. 231 See e.g. P-0613, KEN-OTP-0106-0922, p. 0926, para. 16. 232 P-0613, KEN-OTP-0111-0162, p. 0169, paras 37-38. See also Material related to P-0613, KEN-OTP- 0118-1927, pp. 1945-1950, lines 562-775; P-0613, KEN-OTP-0111-0557, p. 0562, para. 22, p. 0569, para. 62; Material related to P-0613, KEN-OTP-0153-0499, p. 0503, lines 78-83. See P-0613, KEN- OTP-0111-0557, p. 0571, para. 75; KEN-OTP-0115-0216, p. 0222, para. 28. See also P-0613, KEN- OTP-0111-0557, pp. 0568-0569, para. 60.

No: ICC-01/09-01/20 34/81 15 July 2021

. Moreover, P-0613 provides background context as well

233

as clarifications to . The Chamber also notes

234

that

235

. Finally,

thus the Chamber is able to make some inferences

236

.

99 Accordingly, the Chamber finds P-0613 credible and her statements reliable. The

Chamber therefore relies on P-0613’s accounts of her phone conversations

237

to make its findings and draw its conclusions. The Chamber further relies on OTP Investigator Reports and other witnesses’ accounts of their interactions

with P-0613 and their own experience regarding the allegations at hand.

233 See e.g. P-0613, KEN-OTP-0106-0922, p. 0927, para. 23 (P-0613 stated that by ‘“these people” have come looking for “them”’ , P-0613 understood that was referring to ICC witnesses); P-0613, KEN-OTP-0111-0557, p. 9565, paras 37-38; Photograph, KEN- OTP-0111-0581 (On 30 July 2013, P-0613 received a text from an unknown number pleading with her to – which she understood as meaning to withdraw as an ICC witness, ). 234 P-0613, KEN-OTP-0106-0910, p. 0914, para. 18; OTP Investigator Report, KEN-OTP-0117-0897; P-0397, KEN-OTP-0125-0547-R01, pp. 0565-0566, lines 644-652. P-0604 also attributes to an identical phone number (P-0604, KEN-OTP-0117-1019-R01, p. 1022, para. 21). 235 P-0613, KEN-OTP-0106-0922, p. 0925, para. 14; KEN-OTP-0115-0216, p. 0221, para. 25; OTP Investigator Report, KEN-OTP-0153-0054. 236 For instance, and P-0613, explained that he had personally benefitted from ‘leaving the program’ and assured her that everything was very well organised (P-0613, KEN-OTP-0111-0162, p. 0172, para. 53; Material related to P-0613, KEN-OTP- 0118-1927, pp. 1955-1959, lines 910-1032). The Chamber infers in the context of the conversation that by ‘leaving the program’, meant withdrawing as a Prosecution witness. In another example, P-0613 received three text messages later that day from an unknown Kenyan number, which included the following content [ sic ]:

(P-0613, KEN-OTP-0111-0162, pp. 0172- 0173, para. 54; KEN-OTP-0111-0179; KEN-OTP-0111-0180; KEN-OTP-0111-0181).

237 Regarding identified by the Defence, the Chamber relies on P-0613’s statements in which P-0613 identifies (P-0613, KEN- OTP-0111-0162, pp. 0168-0169, paras 34-39).

No: ICC-01/09-01/20 35/81 15 July 2021

100 As to the credibility of P-0516, P-0800 and P-0495, and the reliability of their evidence, the Chamber refers to the relevant sections dedicated to the assessment of the evidence related to these witnesses. The Chamber examines hereunder P-0604’s credibility. 101. The Chamber notes that P-0604 was first interviewed by the Prosecution in 238 2013 and that he testified via video-link between 4 and 16 September 239 240 2014 pursuant to summons ordered by Trial Chamber V(A). Prior to that, P-0604 signed an affidavit dated 11 August 2014 recanting his prior statements and seeking to withdraw as a witness in the Ruto and 241 Sang case. During his in-court testimony, P-0604 recanted his previous evidence and 242 was declared hostile. The Chamber also takes note of the Prior Recorded Statements Decision in which Trial Chamber V(A) found that P-0604 had been subject to improper interference and that this evidence materially influenced the evidence provided by 243 him. However, the Chamber stresses that it is in its own purview to assess the credibility of a witness, and, in this regard, it will assess any evidence independently and will draw its own conclusions. Lastly, the Chamber notes that P-0604 repeatedly 244 failed to attend appointments arranged with him and the Prosecution but that he resumed his contacts with the Prosecution after his in-court testimony. 102. The Chamber is still of the view that P-0604’s evidence can be, in part, relied 245 upon in the case at hand, including from his statement of 2013. The Chamber finds first and foremost that key portions of the evidence provided by P-0604 are corroborated by the statements of P-0613. The Chamber also notes that, on 22 October 2014, P-0604 claimed that he had first been approached by , and subsequently, introduced to Mr Gicheru , and asked to withdraw his statement in exchange for money,

238 P-0604, KEN-OTP-0117-1019-R01. 239 P-0604, ICC-01/09-01/11-T-129-Red-ENG to ICC-01/09-01/11-T-137-Red-ENG (excluding ICC- 01/09-01/11-T-134-ENG). 240 ICC-01/09-01/11-1377-Red; ICC-01/09-01/11-1450-Conf-Exp; ICC-01/09-01/11-1480-Conf. 241 , KEN-OTP-0135-1135. See also P-0604, ICC-01/09-01/11-T-129- Red-ENG , p. 80, line 22 to p. 83, line 21. 242 See P-0604, ICC-01/09-01/11-T-131-Red-ENG, p. 96, lines 13-18. 243 Prior Recorded Statement Decision, para. 79. 244 See OTP Investigator Reports: KEN-OTP-0129-0414-R04; KEN-OTP-0153-0016; KEN-OTP-0153- 0015; KEN-OTP-0153-0052. 245 P-0604, KEN-OTP-0117-1019-R01.

No: ICC-01/09-01/20 36/81 15 July 2021

,

and admitted that his in-court testimony was false and that he was coached on what to

246

say in court by Mr Gicheru and another lawyer named . In the Chamber’s view, the abovementioned information supports the reliance on portions of

P-0604’s statements to the effect that he contacted P-0613 on behalf of

for the purpose of convincing P-0613 .

103 After having assessed the evidence related to P-0613, the Chamber finds that it

247 248 249

shows that between April and September 2013, , , P-0516,

250 251 252 253 254

P-0800, P-0495, P-0604, and some anonymous actors, working

246 P-0604, KEN-OTP-0143-0144-R01. 247 P-0613, KEN-OTP-0111-0162, p. 0169, para. 39; Material related to P-0613, KEN-OTP-0118-1927, pp. 1950-1951, lines 779-793. 248 P-0613, KEN-OTP-0102-0178, p. 0181, paras 16-18; KEN-OTP-0106-0910, p. 0914, para. 19. See also OTP Investigator Reports, KEN-OTP-0103-3498; KEN-OTP-0117-0897; P-0800, KEN-OTP- 0102-0205, p. 0211, para. 38; P-0613, KEN-OTP-0111-0162, p. 0169, para. 36. See also P-0613, KEN- OTP-0111-0162, p. 0173, para. 55. 249 The Chamber notes that during one of P-0516’s meetings with Mr Gicheru, the latter asked him whether he knew ‘other people like [him]’, meaning other witnesses (P-0516, KEN-OTP-0150-0837- R01, pp. 0858-0859, lines 708-739). The Chamber notes that P-0516 responded to the Prosecution investigators that he did not try to identify and locate other witnesses (P-0516, KEN-OTP-0150-0837- R01, pp. 0858-0859, lines 708-790). The Chamber also notes that although P-0516 admits that he was in contact with P-0613, he did not try to persuade her on behalf of Mr Gicheru to withdraw as a Prosecution witness (P-0516, KEN-OTP-0150-0837-R01, pp. 0858-0863, lines 708-903). The Chamber however notes that P-0613 stated with P-0516 that P-0516 urged her to ‘come back’ because Mr Ruto’s people needed witnesses to withdraw from the ICC process (P-0613, KEN-OTP-0102-0178, p. 0181, paras 22-23). Considering P-0516’s involvement with Mr Gicheru and the Chamber’s findings as to the credibility of both P-0516 and P-0613, the Chamber finds P-0613’s statement as to P-0516’s attempt to convince her to withdraw as a Prosecution witness reliable. 250 P-0613, KEN-OTP-0111-0162, p. 0172, paras 52-53; Material related to P-0613, KEN-OTP-0118- 1927, pp. 1955-1959, lines 910-1032. See P-0800, KEN-OTP-0103-2473, p. 2478, para. 28. See also P-0800, KEN-OTP-0111-0140, pp. 0147-0149, paras 35-44, 49, 54; Material related to P-0800, KEN- OTP-0131-0431, pp. 0451-0457; KEN-OTP-0132-0167, pp. 0189, 0206, 0218-0220; Photograph, KEN- OTP-0111-0159. 251 P-0613, KEN-OTP-0118-0137, p. 0141, para. 16. See also OTP Investigator Report, KEN-OTP-0153- 0041, pp. 0041-0042. 252 P-0613, KEN-OTP-0115-0216, pp. 0222-0223, paras 28-31. See also paragraphs 104-106 below. 253 P-0604, KEN-OTP-0117-1019-R01, pp. 1022-1023, paras 22-27; P-0613, KEN-OTP-0124-0007, p.0011, paras 19-23. The Chamber notes that P-0604 and P-0613 gave a slightly different account of their exchanges ( Compare P-0604, KEN-OTP-0117-1019-R01, p. 1022, para. 19; KEN-OTP-0117- 1060-R01, p. 1060 with P-0613, KEN-OTP-0124-0007, p. 0011, para. 18) but finds that the evidence shows that P-0604 was involved in the attempt to offer money to P-0613 on behalf of . Based on the evidence as a whole in the case at hand and the individuals involved, the Chamber infers that the objective was for P-0613 to meet and/or Mr Gicheru in the context of the witness corruption scheme. 254 OTP Investigator Report, KEN-OTP-0117-0903; P-0613, KEN-OTP-0106-0910, p. 0916, paras 32- 35; P-0613, KEN-OTP-0111-0162, pp. 0172-0173, para. 54; Photograph, KEN-OTP-0111-0179; Photograph, KEN-OTP-0111-0180; Photograph, KEN-OTP-0111-0181; P-0613, KEN-OTP-0111-0557, p. 9565, paras 37-38; Photograph, KEN-OTP-0111-0581.

No: ICC-01/09-01/20 37/81 15 July 2021

255 256

individually or in pairs, and even competing against each other, attempted to

convince P-0613 to withdraw as a Prosecution witness and/or tried to convince

257

. The aim was for P-0613 to meet with Mr Gicheru,

258 259 260

, , and other unidentified individuals, to discuss her

withdrawal as a Prosecution witness in the Main Case in exchange for money and other

advantages.

104 The Chamber notes the following meeting between P-0613 and P-0495 of

particular relevance and probative value, and illustrative of the various attempts to

contact P-0613 for the purpose of offering her financial incentives to withdraw as a

Prosecution witness.

105 On 13 September 2013, P-0495 and P-0613 met

261

. During their meeting,

P-0495 attempted to persuade P-0613 to meet

255 See e.g. P-0613, KEN-OTP-0111-0162, p. 0169, para. 37; See Material related to P-0613, KEN-OTP- 0118-1927, pp. 1945-1950, lines 562-775; P-0800, KEN-OTP-0111-0140, pp. 0147-0149, paras 35-44, 49, 54; Material related to P-0800, KEN-OTP-0131-0431, pp. 0451-0457; Photograph, KEN-OTP-0111- 0159; Material related to P-0800, KEN-OTP-0132-0167, pp. 0189, 0206, 0218-0220. 256 See P-0613, KEN-OTP-0111-0162, p. 0171, para. 49; Material related to P-0613, KEN-OTP-0118- 1927, pp. 1954-1955, lines 868-907 and P-0613, KEN-OTP-0111-0557, p. 0561, para. 16). In the Chamber’s view, this shows that those individuals were trying to reach and convince P-0613 first. 257 P-0613, KEN-OTP-0102-0178, p. 0181, para. 18; KEN-OTP-0111-0162, p. 0173, paras 55-56; KEN- OTP-0111-0557, p. 0562, para. 24; Material related to P-0613, KEN-OTP-0153-0499, pp. 0504-0505, lines 109-139; P-0613, KEN-OTP-0102-0178, p. 0180, para. 16; KEN-OTP-0106-0910, p. 0914, para. 19. See also OTP Investigator Reports, KEN-OTP-0103-3498, KEN-OTP-0117-0897; P-0800, KEN- OTP-0102-0205, p. 0211, para. 38; P-0613, KEN-OTP-0111-0162, p. 0169, paras 37-38. See also Material related to P-0613, KEN-OTP-0118-1927, pp. 1945-1950, lines 562-775; P-0613, KEN-OTP- 0111-0557, p. 0562, para. 22, p. 0569, para. 62; Material related to P-0613, KEN-OTP-0153-0499, p.0503, lines 78-83; P-0613, KEN-OTP-0115-0216, p. 0230, para. 75; Material related to P-0613, KEN- OTP-0129-0740, p. 0743; P-0613, KEN-OTP-0115-0216, p. 0230, para. 75; Material related to P-0613, KEN-OTP-0129-0740, pp. 0747-0748, lines 192-229, p. 0745, lines 106-110; P-0613, KEN-OTP-0115- 0216, pp. 0231-0232, paras 76-79; P-0800, KEN-OTP-0111-0140, p. 0149, para. 54; Material related to P-0800, KEN-OTP-0132-0167, pp. 0218-0220. 258 P-0613, KEN-OTP-0111-0557, pp. 0564-0565, para. 35; Material related to P-0613, KEN-OTP-0118- 1927, pp. 1959-1963, lines 1042-1063; P-0604, KEN-OTP-0117-1019-R01, pp. 1022-1023, paras 22-27 and P-0613, KEN-OTP-0124-0007, p. 0011, paras 19-23. 259 P-0613, KEN-OTP-0115-0216, p. 0222, paras 29-30. 260 See e.g. P-0613, KEN-OTP-0111-0557, p. 0562, para. 24; Material related to P-0613, KEN-OTP- 0153-0499, pp. 0504-0505, lines 109-139; P-0613, KEN-OTP-0115-0216, p. 0222, para. 29. 261 P-0613, KEN-OTP-0115-0216, pp. 0229-0232, paras 66, 74-80; Material related to P-0613, KEN- OTP-0129-0740. Material related to P-0800, KEN-OTP-0145-0587, pp. 0589-0591, lines 2-99; Material related to P-0800, KEN-OTP-0145-0594, pp. 0598-0600; KEN-OTP-0138-0650, KEN- OTP-0138-0651, KEN-OTP-0138-0652, KEN-OTP-0138-0653, KEN-OTP-0138-0654, KEN-OTP- 0138-0655, KEN-OTP-0138-0656, KEN-OTP-0138-0657, KEN-OTP-0138-0658, KEN-OTP-0138- 0659, KEN-OTP-0138-0660, KEN-OTP-0138-0661, KEN-OTP-0138-0662, KEN-OTP-0138-0663.

No: ICC-01/09-01/20 38/81 15 July 2021

with ‘them’, including with Mr Gicheru,

262

for the

263

purpose of negotiating her withdrawal as an ICC witness. P-0495 explained that she

264

would be provided with and that the amount of money or

other benefits she would receive was subject to negotiation and dependant on the ‘level in society’ she belonged to.

265

P-0495 explained that she would be provided with

266

and that the amount of money or other benefits she would receive

267

was subject to negotiation and dependant on the ‘level in society’ she belonged to.

He told her for instance that P-0800 was paid 1,2 million Ksh (about 10,291 euros at

268

the time) based on situation. P-0495 explained that it would

be a verbal agreement, with cash payment, and there would be a meeting with a lawyer

269

to prepare the withdrawal from the ICC process. Regarding the cash payment, P-

0495 told P-0613 not to ‘make the mistake of putting it in the bank because they will trace the bank’.

270

106 P-0613 asked who the person in charge was and whether that included

Mr Gicheru, and P-0495 confirmed that it was Mr Gicheru and another individual, but

271

he had not been informed of the identity of that individual. P-0495 told her that

Mr Gicheru was the person to meet, that ‘[Mr] Gicheru [would] complete everything

272

for [her]’ and confirmed that Mr Gicheru had been given ‘all the authority’. P-0495 explained that ‘they’ were interested in suspending the Main Case because it was taking

262 P-0613, KEN-OTP-0115-0216, p. 0230, para. 75; Material related to P-0613, KEN-OTP-0129-0740, p. 0743; P-0613, KEN-OTP-0115-0216, p. 0230, para. 75. 263 Material related to P-0613, KEN-OTP-0129-0740, pp. 0743-0757, lines 34-561. 264 P-0613, KEN-OTP-0115-0216, p. 0230, para. 75; Material related to P-0613, KEN-OTP-0129-0740, pp. 0743-0744, lines 53-83, p. 0752, lines 362-379. 265 P-0613, KEN-OTP-0115-0216, pp. 0230-0231, para. 75; Material related to P-0613, KEN-OTP-0129- 0740, pp. 0743-0744, lines 53-83, p. 0752, lines 362-379, p. 0748, lines 216-217, p. 0754, lines 452-456. 266 P-0613, KEN-OTP-0115-0216, p. 0230, para. 75; Material related to P-0613, KEN-OTP-0129-0740, pp. 0743-0744, lines 53-83, p. 0752, lines 362-379. 267 P-0613, KEN-OTP-0115-0216, pp. 0230-0231, para. 75; Material related to P-0613, KEN-OTP-0129- 0740, pp. 0743-0744, lines 53-83, p. 0752, lines 362-379, p. 0748, lines 216-217, p. 0754, lines 452-456. 268 P-0613, KEN-OTP-0115-0216, pp. 0230-0231, para. 75; Material related to P-0613, KEN-OTP-0129- 0740, pp. 0743-0744, lines 53-83, p. 0752, lines 362-379. 269 Material related to P-0613, KEN-OTP-0129-0740, p. 0744, lines 89-102; P-0613, KEN-OTP-0115- 0216, p. 0231, para. 76. 270 Material related to P-0613, KEN-OTP-0129-0740, p. 0744, lines 89-102; P-0613, KEN-OTP-0115- 0216, p. 0231, para. 76. 271 Material related to P-0613, KEN-OTP-0129-0740, pp. 0744-0745, lines 103-123; P-0613, KEN-OTP- 0115-0216, p. 0231, para. 77. 272 Material related to P-0613, KEN-OTP-0129-0740, pp. 0747-0748, lines 192-229, p. 0745, lines 106- 110; P-0613, KEN-OTP-0115-0216, pp. 0231-0232, paras 76-79.

No: ICC-01/09-01/20 39/81 15 July 2021

273 too long and their objective was to stop it. He told P-0613 that she would be provided 274 with government protection so that she could defect and be protected from others too. 107. The Chamber notes that P-0613 neither met in person or had any direct contact with Mr Gicheru, . She learned of their involvement in the witness corruption scheme through other witnesses. Based on the evidence related to P-0613 and other witnesses, the Chamber is however convinced that , , P-0516, P-0495, P-0800, and , were not acting independently but rather approached P-0613 on behalf of individuals such as Mr Gicheru, , for the purpose of offering her money and other advantages in exchange for her withdrawal as a Prosecution witness in the Main Case. 108. Accordingly, the Chamber is convinced that Mr Gicheru was involved in the attempts to convince P-0613 to withdraw as a Prosecution witness in exchange for financial incentives and other advantages. The Chamber makes the following factual findings in relation to said involvement. 109. Mr Gicheru promised a sum of money at the end of 275 April 2013 to obtain P-0613. The Chamber infers from this evidence that Mr Gicheru was trying to locate her in the context of the witness corruption scheme. 110. Mr Gicheru instructed in July 2013 to P-0613 so . 276 The Chamber infers from the evidence that the objective was for P-0613 and thus to be contacted in the context of the witness corruption scheme. 111. The Chamber also finds that the evidence establishes that: on 21 July 2013, met with P-0800 in , and offered P-0800 money to assist 277 in locating and corrupting other witnesses, notably P-0613;

273 Material related to P-0613, KEN-OTP-0129-0740, p. 0755, lines 460-470; P-0613, KEN-OTP-0115- 0216, pp. 0231-0232, para. 78. 274 Material related to P-0613, KEN-OTP-0129-0740, p. 0747, lines 201-208; P-0613, KEN-OTP-0115- 0216, p. 0232, paras 78-79. 275 P-0613, KEN-OTP-0102-0178, paras 13, 16-17; OTP Investigator Report, KEN-OTP-0117-0897. 276 P-0613, KEN-OTP-0111-0162, p. 0169, paras 37-38. See also Material related to P-0613, KEN-OTP- 0118-1927, pp. 1945-1950, lines 562-775; P-0613, KEN-OTP-0111-0557, p. 0562, para. 22, p. 0569, para. 62; Material related to P-0613, KEN-OTP-0153-0499, p. 0503, lines 78-83. 277 P-0800, KEN-OTP-0111-0140, pp. 0147-0149, paras 35-44, 49; Material related to P-0800, KEN- OTP-0131-0431, pp. 0451-0457; Photograph, KEN-OTP-0111-0159.

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278 ;

279 ; and more

specifically,

280 . The Chamber infers from this evidence that in

July 2013 Mr Gicheru induced to offer P-0613

financial incentives in exchange for her withdrawal as a Prosecution witness and to

report back to him, which did with the assistance of P-0800.

281 112. Finally, the Chamber finds that the evidence establishes that in September 2014

Mr Gicheru induced P-0495 to approach P-0613 in the context of the witness corruption

scheme, which P-0495 did.

113 The Chamber recalls its general statements concerning the credibility of

282 witnesses. With regard to (hereinafter ‘P-0800’,

) the Chamber notes that the witness was initially supposed to

testify for the Prosecution

saying ‘bye’ to the Court 283 and the witness broke off contacts with the Court for several

284 months. After being contacted again in the beginning of 2014, the witness decided to

285 resume cooperation with the Prosecution and eventually testified as a Prosecution

286 witness in November 2014.

114 The Chamber is not convinced by the Defence’s arguments that the findings made

by one of the judges in the Main Case speak in favour of discarding P-0800’s

278 P-0800, KEN-OTP-0111-0140, pp. 0148-0149, paras 43, 54; Material related to P-0800, KEN-OTP- 0132-0167, pp. 0189, 0206. 279 P-0800, KEN-OTP-0111-0140, p. 0149, para. 54. 280 Material related to P-0800, KEN-OTP-0132-0167, pp. 0218-0220. See also P-0613, KEN-OTP-0111- 0162, pp. 0172-0173, paras 52-54; Material related to P-0613, KEN-OTP-0118-1927, pp. 1955-1959, lines 910-1032; P-0800, KEN-OTP-0103-2473, p. 2478, para. 28. 281 See paragraphs 105-106 above. 282 See paragraphs 40-42 above. 283 P-0800, KEN-OTP-0117-0022-R01. 284 P-0800, KEN-OTP-0135-0054, p. 0065, lines 386-399, 444-461; P-0800, KEN-OTP-0135-0103, pp. 0104-0105, lines 34-58. 285 P-0800, KEN-OTP-00135-0054, pp. 0057-0058, lines 88-142. 286 P-0800, Transcripts of hearings, from 14 to 30 November 2014, ICC-01/09-01/20-T-018-Conf-Red- ENG to ICC-01/09-01/20-T-030-Conf-ENG.

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287 testimony. First, the Chamber stresses again that it is in its own purview to assess the credibility of a witness. While it takes note of findings of other chambers, it will assess the evidence before it independently and draw its own conclusions. In the Decision on Acquittal, one of the judges signing the majority decision assessed the evidence provided by P-0800 on the training of Kalenjin youths, which formed an element of the Prosecution’s theory that a ‘Network’ existed which perpetrated the crimes alleged in the Main Case. He concluded that the witness’s testimony on these preparatory 288 meetings was unreliable, considering that he mislead the Court. 115. However, this conclusion was made with regards to questions concerning evidence supporting the allegations in the Main Case. This is different from the subject matter of the current proceedings. One of the judges in Trial Chamber V(A) also cited to P-0800’s testimony regarding the allegations of witness interference and his 289 involvement in the scheme. Indeed, for him this was one of the reasons not to rely 290 on P-0800’s evidence in the Main Case. Consequently, the judge of the Main Case Chamber seemed to fully believe P-0800 when it came to his testimony concerning witness interference. Accordingly, the Chamber finds that the findings made by the Chamber in the Main Case do not speak in favour of disregarding the evidence of P- 0800. 116. P-0800 seemed to have changed his willingness to cooperate with the Prosecution 291 several times and also changed the facts provided to OTP investigators on instances. Further, P-0800 tried to convince other persons not to testify as a witness before this Court. However, the Chamber is still of the view that the witness’s statements can be, in part, relied upon. At the outset, the evidence provided by the witness is also 292 corroborated by other items of evidence, such as documents or audio material. Further, during his testimony in the Main Case, the witness addressed these issues under

287 Defence Written Submissions, paras 57, 100. 288 Decision on Acquittal , Reasons of Judge Fremr, paras 39-41. 289 Decision on Acquittal , Reasons of Judge Fremr, para. 42. 290 Decision on Acquittal , Reasons of Judge Fremr, para. 43. 291 See P-0800, KEN-OTP 0135-0054, p. 0068, lines 504-516; P-0800, KEN-OTP-0135-0103, p. 0108, lines 179-193. 292 See e.g KEN-OTP-0111-0159-R001.

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oath and repeated the same facts he previously provided to the Prosecution concerning

293 the interference of him and other witnesses.

117 Irrespective of the precise motivation of P-0800 to testify and cooperate with the

Prosecution before his testimony in the Main Case, the Chamber is of the view that his

statements concerning the efforts to keep witnesses from testifying in the Main Case

can be relied upon for the purposes of this decision.

118 The Chamber is convinced that promised P-0800 money in summer

294 2013, in order for the witness to and not testify before the Court.

The Chamber is further convinced that , upon instructions by Mr Gicheru,

295 contacted P-0800 to convince him to .

119 Upon took P-0800 to a meeting with Mr Gicheru in

296 Nairobi. During the meeting, Mr Gicheru offered to give P-0800 between 1,5 to

297 2 million Ksh (about 13,408 to 18,104 euros at the time). From the interaction with

, P-0800 got the impression that the money was offered in exchange ‘[t]o be

298 loyal to these people, and agree [with] what they are going to tell [him]’. During the

same meeting, P-0800 was immediately incorporated into plans to interfere with other

witnesses: Mr Gicheru asked P-0800 to contact P-0495 and facilitate a meeting between

299 the latter and Mr Gicheru. P-0800 was given travel money by Mr Gicheru to go to

300 and meet with P-0495.

120 Later in 2014, Mr Gicheru accompanied P-0800 to a law firm and introduced the

301 witness to the attending lawyers. At the law firm, P-0800 signed an affidavit

302 . The witness signed the last page of the affidavit, without

293 P-0800, Transcripts of hearings, from 14 to 30 November 2014, ICC-01/09-01/20-T-018-Conf-Red- ENG to ICC-01/09-01/20-T-030-Conf-ENG. 294 Material related to P-0800, KEN-OTP-0131-0431, p. 0438, lines 192-196, p. 0441, lines 309-313, and p. 0443, lines 356-362. 295 P-0800, KEN-OTP 0135-0103, p. 0110, lines 253-265; KEN-OTP-0135-0113, p. 0114, lines 10-16, p. 0116, lines 77-87. 296 P-0800, KEN-OTP-0135-0103, p. 0105, lines 60-67, p. 0111, lines 307-313. P-0800, KEN-OTP- 0135-0113, p. 0114, lines 10-16, p. 0117, lines 116-129. 297 P-0800, KEN-OTP-0135-0113, p. 0118, lines 155-181. 298 P-0800, KEN-OTP-0135-0113, p. 0119, line 224. 299 P-0800, KEN-OTP-0135-0113, pp. 0120-0121, lines 274-287, p. 0126, lines 446-456. 300 P-0800, KEN-OTP-0135-0113, pp. 0121-0122, lines 298-313. 301 P-0800, KEN-OTP-0135-0139, pp. 0151-0152, lines 432-443. 302 P-0800, KEN-OTP-0135-0139, pp. 0148-0152, lines 328-466; Affidavit, KEN-OTP-0145-0554.

No: ICC-01/09-01/20 43/81 15 July 2021

303 ever reading the entire document and explained that he feared negative consequences

if he didn’t. 304 Afterwards, called P-0800 to tell him to go to a law firm and

305 sign an affidavit concerning P-0800’s withdrawal in the Main Case. At the firm,

306 P-0800 was told that Mr Gicheru had ordered the affidavit to be prepared, which the

307 witness signed without having read the document.

121 The Chamber recalls again its prior statements regarding the assessment of the

308 credibility of witnesses. The Chamber takes note of the in-court testimony provided

(hereinafter ‘P-0495’) in the Main Case. 309 by The Chamber takes

further note of the Prior Recorded Statements Decision in which the Chamber found

310 that P-0495 had been subject to witness interference. In his testimony before the

Main Case Chamber, the witness disavowed his entire prior statement and explained

that he did not give an interview to the Prosecution in which he provided information

311 on issues or facts concerning the Main Case. He stated that a Prosecution investigator

had prepared two statements for him. After rejecting one he modified the other one,

312 313 complementing it with his personal details and then signed this statement. Further,

P-0495 explained that he copied the content of this statement in his own handwriting in

314 some sort of notebook in order to manufacture further evidence. P-0495 further

315 explained that the Prosecution offered him incentives to sign the statement. With

regard to P-0800 with which the witness was

confronted, P-0495 stated that he did not know with whom he was talking and that the

316 Prosecution had scripted the entire conversation.

303 P-0800, KEN-OTP-0135-0155, pp. 0158-0159, lines 75-88, 107-114. 304 P-0800, KEN-OTP-0135-0155, p. 0158, lines 89-98. 305 P-0800, KEN-OTP-0135-0155, p. 0170, lines 537-540. 306 P-0800, KEN-OTP-0135-0155, p. 0171, lines 576-583. 307 P-0800, KEN-OTP-0135-0155, p. 0172, lines 607-608. 308 See paragraphs 40-42 above. 309 P-0495, Transcripts of hearings, from 17 to 22 September 2014, ICC-01/09-01/20-T-002-Conf-ENG ( which is identitical to ICC-01/09-01/20-T-025-Conf-ENG), ICC-01/09-01/20-T-016-Conf-Red-ENG, ICC-01/09-01/20-T-017-Conf-ENG, ICC-01/09-01/20-T-024-Conf-ENG. 310 Prior Recorded Statement Decision, para. 109. 311 T-024, p. 6, lines 6-11. 312 T-024, p. 8, line 12 to p. 10, line 15; p. 11, line 23 to p. 12, line 14. 313 T-024, p. 12, line 23 to p. 14, line 9. 314 T-024, p. 15, line 1 to p. 16, line 7; p. 68, line 21 to p. 89, line 24. 315 T-024, p. 85, line 10 to p. 86, line 4. 316 T-017, p. 22, line 6 to p. 24, line 24.

No: ICC-01/09-01/20 44/81 15 July 2021

122 The Chamber finds this testimony to be implausible on the following considerations: firstly, it does not believe – on P-0495’s testimony alone – that the Office of the Prosecutor or any of its members would actively engage in article 70 317 offenses. There is a witness statement of the interview in question. It is unlikely that the Prosecution would have created this statement and offered P-0495 money or other incentives in order to sign. Secondly, the Chamber considers P-0495’s testimony on the production of the notebook incredible – also in light of the explanation brought forward by the Prosecutor on how this notebook was created. The Prosecutor argues that P-0495 wrote the information in his notebook concomitant with its occurrence and later used the notebook when he gave his interview to members of the Office of the Prosecutor. The Chamber finds this course of events more credible than the explanation provided by the witness. It does not believe – on P-0495’s testimony alone – that the members of the Office of the Prosecutor induced P-0495 to produce false evidence. Similarly, P-0800, the Chamber considers it implausible that P-0495 did not know with whom he was talking. P-0495’s explanation that members of the Office of the Prosecutor had scripted his 318 entire conversation is not convincing. 123. Considering the above, on the evidence available, the Chamber finds that P-0495 was not truthful during his testimony before the Chamber of the Main Case. Accordingly, it will not rely on this testimony before the Main Case Chamber and does not consider that it affects the assessment of the facts established below. 124. The Chamber is convinced that Mr Gicheru gave P-0800 some travelling money 319 and to look for P-0536 and bring P-0536 to him (Mr Gicheru). The Chamber is further convinced that P-0495 told P-0800 that he was promised 320 money. P-0495 also told P-0613 first that he had received 2,2 million Ksh, then said that they agreed to give him 2,5 million Ksh (about 19,666 and 22,348 euros at the

317 P-0495, KEN-OTP-0084-0236. 318 As a side note, the Chamber notes that the Defence for Mr Ruto declared that it does not believe the witness’ explanations concerning the actions of the members of the Office of the Prosecutor; ICC-01/09- 01/20-T-017, p. 73, lines 7-10 and p. 85, line 23 to p. 86, line 2 . 319 P-0800, KEN-OTP-0135-0054, p. 0066, lines 428-433. 320 P-0800, KEN-OTP-0135-0074, pp. 0084-0085, lines 370-387.

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321 322 time) and encouraged her to withdraw. P-0495 told P-0800 that he had met up with

323 Mr Gicheru. As explained above, the Chamber does not believe the information

provided by P-0495 before the Chamber of the Main Case – this includes his

explanation that he deliberately mentioned Mr Gicheru’s name in recorded

324 conversations in order to receive money. Accordingly, the Chamber relies on the

325 326 evidence that P-0495 said to P-0613 that Mr Gicheru is handing out the money

and that he is ‘the one you have to meet’. 327

125 P-0495 assured P-0800 that he would be prepared by lawyers before testifying in

the Main Case and that P-0800 should implicate P-0613 and cite money as a motive for

328 329 cooperating with the Prosecutor. P-0495 did exactly this during his testimony.

126 (hereinafter ‘P-0536’) testified before the Chamber of

330 the Main Case. The Defence points out that the Chamber of the Main Case did not

331 rely on her evidence and that during her testimony she was not asked about her

332 conversations with . The Chamber recalls its general statements

333 concerning the credibility of witnesses. Accordingly, whether the Chamber of the

Main Case relied on P-0536 is not dispositive of the Chamber’s own assessment of P-

0536 and the evidence provided by her. Additionally, the Chamber must note that the

allegations at the heart of the Main Case were completely different from the charges

brought forward by the Prosecutor in this case. Accordingly, the questioning of P-0536

321 Material related to P-0613, KEN-OTP-0129-0740, p. 0743, lines 53-58, p. 0744, lines 81-85. 322 Material related to P-0613, KEN-OTP-0129-0740, p. 0748, lines 216-225. See also paragraphs 105- 106 above. 323 P-0800, KEN-OTP 0135-0074, p. 0085, lines 401-411. 324 T-016, p. 63, line 23 to p. 64, line 3. 325 See further for P-0495’s attempt to interfere with P-0613 paragraphs 99-101 above. 326 Material related to P-0495, KEN-OTP-0129-0740, p. 0745, lines 106-110. 327 Material related to P-0495, KEN-OTP-0129-0740, p. 0747, line 192. 328 P-0800, KEN-OTP-0144-0272-R01, pp. 0278-0279, lines 226-245, p. 0284, lines 423-434, p. 0285, lines 451-469. 329 T-024, p. 16, lines 8-23; p. 17, line 22 to p. 19, line 1; p. 21, lines 4-8; T-016, p. 64, lines 1-7; p. 65, lines 12-25. 330 P-0536, Transcripts of hearings, from 9 September to 4 October 2013, ICC-01/09-01/20-T-007-Conf- ENG to ICC-01/09-01/20-T-012-Conf-ENG. 331 Defence Written Submissions, para. 78. 332 Defence Written Submissions, para. 77. 333 See paragraphs 40-42 above.

No: ICC-01/09-01/20 46/81 15 July 2021

by the Main Case Chamber is not indicative in any way of the importance or pertinence

of her evidence for the current proceedings.

334 127. The Defence also submits that P-0536 is unreliable. The Chamber notes that,

335 throughout her contacts with the Office of the Prosecutor P-0536 was always

straightforward in her statements and interactions with the Prosecution. Her statements

are internally consistent, free of contradictions, and are partially corroborated by other

evidence. There is no indication that she did not tell the truth concerning the allegations

which form the subject of these proceedings. Accordingly, the Chamber finds P-0536

to be reliable.

128 contacted the witness over the course of several months regularly by

telephone. During these conversations, he repeatedly tried to convince her

336 and to withdraw as an ICC witness. He promised recurrently to go visit her

337 and . He also promised her that she would receive

money. He said twice that P-0536 would receive 1,4 million Ksh

338 (about 12,515 euros at the time). In one conversation he spontaneously increased the

amount to 1,6 million (about 14,303 euros at the time), after declaring ‘I’m even saying

that you should be given more’. told her that this money was meant ‘to 339

start a new life’ for her. 340 repeatedly said that any money that would be

341 given to P-0536 would be in cash.

129 also makes reference to a ‘lawyer’ who is implicated in the efforts to

342 make her withdraw. In the phone conversation of August 2013, P-0536 asked

how she can trust ‘this lawyer’ they talked about in a previous conversation.

334 Defence Written Submissions, para. 102. 335 The witness gave several statements to the Office of the Prosecutor on the subject of witness interference: KEN-OTP-0111-0188-R01, KEN-OTP-0111-0201-R01, KEN-OTP-0118-0011-R01. 336 Material related to P-0536, KEN-OTP-0114-0198, pp. 0210-0212, lines 362-379, 395-408; Material related to P-0536, KEN-OTP-0114-0291, p. 0294, lines 47-50. 337 Material related to P-0536, KEN-OTP-0114-0198, p. 0203, lines 118-122, pp. 0206-0207, lines 231- 237; KEN-OTP-0114-0296, p. 0298, lines 11-17. 338 Material related to P-0536, KEN-OTP-0114-0198, p. 0212, lines 417-425, p. 0215, lines 514-515. 339 Material related to P-0536, KEN-OTP-0114-0198, p. 0215, lines 519-522. mentions the same sum during a different conversation with P-0536. Material related to P-0536, KEN-OTP-0114-0244, pp. 0246-0247, lines 27-33. 340 Material related to P-0536, KEN-OTP-0111-0201-R01, p. 0206 para. 21. 341 Material related to P-0536, KEN-OTP-0114-0198, p. 0212, lines 417-423, lines 451-452, 521-522; Material related to P-0536, KEN-OTP-0114-0296, p. 0299, lines 58-64. 342 Material related to P-0536, KEN-OTP-0114-0291, p. 0294, lines 49-52.

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replies without hesitation that Mr Gicheru is , and that ‘he’s a real gentlemen’. 343 It is clear that knew to whom the reference ‘lawyer’, used by both P-0536 and himself, pertained to. Accordingly, the Chamber is convinced that ‘the lawyer’ P-0536 and referred to throughout their conversations refers to the suspect. 130. During the same conversation, P-0536 asks why Mr Gicheru does not come with 344 to pick her up. replies that ‘it’s not at all necessary that it’s known he’s the one doing the job. And he’s the one who finalizes things with all those people who are coming to this side; those people who are returning’. 345 The Chamber interprets this to mean that – in accordance with the common plan – it was not Mr Gicheru’s assigned role to approach the targeted witnesses directly. ‘[C]oming to this side’ or ‘people who are returning’ is understood by the Chamber to mean withdraw as a witness from the ICC proceedings. Accordingly, the Chamber finds that said that Mr Gicheru was in charge of finalising the process of the withdrawal of the targeted witnesses. In the same conversation, tells P-0536 ‘they really 346 requested me, they really requested me to go and get you’. There is no indication in the evidence available to the Chamber which contradicts this finding (for instance that would have made reference to Mr Gicheru in order to falsely implicate him). Further, also mentioned Mr Gicheru on other occasions when contacting other targeted witnesses. Accordingly, the Chamber finds the statements made by to P-0536 credible.

131 The Chamber notes that the evidence provided in support of this incident emanates from P-0341 ( ) himself. As regards P-0341’s credibility, the Chamber first notes the evidence according to which P-0341 allegedly engaged in the process of trying to corrupt (hereinafter ‘P-0274’) by organising a 347 348 meeting with Mr Gicheru, and the fact that the former denies he did so. The

343 Material related to P-0536, KEN-OTP-0114-0296, p. 0294, lines 37-45. 344 Material related to P-0536, KEN-OTP-0114-0296, p. 0294, line 46. 345 Material related to P-0536, KEN-OTP-0114-0296, p. 0294, lines 49-51. 346 Material related to P-0536, KEN-OTP-0114-0296, p. 0294, lines 63-64. 347 , pp. 0994-9995, paras 52-56. See also . See also Prosecution Written Submissions, para. 41. 348 P-0341, KEN-OTP-0159-1803-R01, p. 1818, lines 508-510.

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Chamber considers that this element alone, even if established, should not cast doubt

on the credibility of P-0341 as a whole and lead to rejecting his entire testimony. It is

established jurisprudence that a chamber may reject one part of the testimony of a

349 witness, while relying on another part. In the present instance, the fact that P-0341

might have engaged, in a limited manner, in accepting to introduce another witness to

Mr Gicheru – as well as the fact that he did accept the money that was offered to him –

because he was asked to, does not mean that he lied about the actions of the alleged

members of the common plan with the view to corrupt him.

132 In addition, the Chamber notes that several elements buttress the credibility of P-

0341: the fact that P-0341 spontaneously and repeatedly contacted ICC staff members

350 ( ,

351 ,

352 ) and has been transparent regarding the money he

353 received; the fact that he

during an meeting in Nairobi in July 2013,

354 ; and the fact that he provides bank statements in

355 support of his statement.

133 The Chamber also notes that P-0341 repeatedly insisted on the fact that he felt

he had to comply with the instructions he was given (to attend , to

accept the money, to sign affidavits etc.) because he worried for his own safety

356 . He also provided a personalised and detailed account of why he did

357 not attend a meeting with ICC investigators.

349 See paragraph 41 above. 350 P-0341, KEN-OTP-0150-0255-R01, p. 0269, para. 76. 351 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 66, p. 0274, para. 104. 352 P-0341, KEN-OTP-0150-0255-R01, p. 0258, para. 15; OTP Investigator Report, KEN-OTP-0159- 0884, p. 0944, para. 245; OTP Investigator Report, KEN-OTP-0153-0028. 353 P-0341, KEN-OTP-0150-0255-R01, p. 0274, para. 104. 354 P-0341, KEN-OTP-0150-0255-R01, p. 0270, paras 80-82. 355 Financial Documents: KEN-OTP-0149-0125; KEN-OTP-0149-0126; KEN-OTP-0150-0283-R01; KEN-OTP-0159-1386. 356 P-0341, KEN-OTP-0150-0255-R01, p. 0262, para. 36, p. 0265, paras 49, 51-52, p. 0269, paras 75, 76, p. 0271, para. 88, p. 0273, para. 96, p. 0276, para. 113, p. 0280, para. 136. 357 P-0341, KEN-OTP-0150-0255-R01, p. 0275, paras 109-111. See Defence Written Submissions, para. 83; Defence Reply, para. 94.

No: ICC-01/09-01/20 49/81 15 July 2021

134 The Chamber further rejects the Defence’s argument that there is no evidence

showing that P-0341 could have been regarded as a person of interest by Mr Gicheru

, he did not ‘offer any information detrimental to [Mr Ruto]’. 358 because, inter alia The

assertion by the Defence that P-0341 did not know anything is based on the knowledge

that the Defence currently has of P-0341’s statement, which is unrelated to what the

members of the common plan knew, guessed, or assumed at the time of the alleged

events. It does not exclude per se that P-0341 could have been seen otherwise, and it is

the view of the Chamber that the mere fact of having been in contact with the Court in

the context of the Ruto and Sang case, as was the case with P-0341, could have been

359 enough to spark the interest of the members of the common plan organisation.

135 Finally, the Chamber recalls that it can rely on uncorroborated evidence for the

360 purpose of the present decision. Accordingly, the Chamber establishes the facts

detailed in the following paragraphs.

361 136. P-0341, of Nandi (Kalenji) ethnicity, is from .

362 .

363 .

137 In 2011, P-0341 attended a meeting , during

which

364 . P-0341

. 365 On that occasion,

366 .

138 On three occasions, he was also approached by during

meetings organised by the ICC. advised him to

358 Defence Written Submissions, paras 82, 88; Defence Reply, para. 87. 359 Defence Written Submissions, para. 80 referring to KEN-OTP-0147-1590-R01. 360 See Defence Written Submissions, para. 85; Defence Reply, paras 88, 89. See also paragraph 38 above. 361 P-0341, KEN-OTP-0150-0255-R01, p. 0255. 362 OTP Investigator Report, KEN-OTP-0147-1590-R01, p. 1590. 363 P-0341, KEN-OTP-0150-0255-R01, p. 0260, paras 24-25; Press article, KEN-OTP-0150-0285-R01. 364 P-0341, KEN-OTP-0150-0255-R01, p. 0260, paras 26-27. 365 P-0341, KEN-OTP-0150-0255-R01, p. 0260, paras 26-27. 366 P-0341, KEN-OTP-0150-0255-R01, p. 0261, para. 28.

No: ICC-01/09-01/20 50/81 15 July 2021

, that P-0341 would then

have the opportunity , and that he and

would ‘get money’. 367

139.

. 368 On April

2013, concerned about his safety, P-0341 accepted the invitation to meet with ‘the

elders’, and , who had been paid to do so by Mr Gicheru, took him to

369 Mr Gicheru. , and other people whom P-0341 did

not recognize, were asked to leave the room, and

explained to P-0341 that he

to Mr Gicheru, and that

370 .

140 Mr Gicheru, and , who remained , asked

371 P-0341 if he was an ICC witness, to which he answered that he was merely a victim.

They told P-0341 that he should no longer attend ICC meetings, and that if he were to

do so, . 372 told him that in exchange,

he would be given ‘a car, another farm, a plot in town’ and 5 million Ksh (about 45,261

euros at the time), and that

. 373 asked P-0341 to

approach other ICC witnesses in Kenya and abroad to convince them to withdraw from

374 the case, naming in particular , P-0274 . Feeling

particularly threatened by Mr Gicheru’s warnings that he was sending many people in

Kenya and abroad to locate ICC witnesses, P-0341 agreed not to attend ICC meetings

375 anymore.

367 P-0341, KEN-OTP-0150-0255-R01, pp. 0261-0262, paras 31-32. 368 P-0341, KEN-OTP-0150-0255-R01, p. 0262, para. 36. 369 P-0341, KEN-OTP-0150-0255-R01, p. 0262, para. 36, p. 0266, para. 57. 370 P-0341, KEN-OTP-0150-0255-R01, p. 0264, para. 46. 371 P-0341, KEN-OTP-0150-0255-R01, p. 0264, para. 47. 372 P-0341, KEN-OTP-0150-0255-R01, p. 0264, paras 47-48. 373 P-0341, KEN-OTP-0150-0255-R01, p. 0265, para. 49. 374 P-0341, KEN-OTP-0150-0255-R01, p. 0265, paras 50-52. 375 P-0341, KEN-OTP-0150-0255-R01, p. 0265, paras 52, 53.

No: ICC-01/09-01/20 51/81 15 July 2021

376 Mr Ruto was happy that P-0341 had agreed.

gave him some money for lunch and transport back home, and told him that

377 Mr Gicheru ‘would be the focal point now’ and ‘would deal with everything’.

141 Between April and May 2013, P-0341 attended several

378 times at the request of Mr Gicheru who was asking him to come almost every day.

Mr Gicheru did not give him money during that period of time, stating that other

witnesses withdrawing from ICC proceedings had been paid earlier in the day and that

379 there was no money left, and to return the next day. However, Mr Gicheru would

often remind P-0341 that he had agreed not to attend ICC meetings or take part in the

proceedings before the Court, not to be on a witness list and not to give any information

380 about Mr Ruto to the ICC. Mr Gicheru also repeatedly asked questions about other

witnesses, requesting that P-0341 locate , bring P-0274 to Mr Gicheru , organise a meeting between Mr Gicheru and

381 , and ask him to withdraw as a witness. Mr

Gicheru said that both and P-0341 would receive ‘something special’, which P-

382 0341 understood to be money.

142 On May 2013, Mr Gicheru gave P-0341 500,000 Ksh (about 4,526 euros at the

time), told him not to deposit the money into a bank, and that P-0341 would have to

383 return later to sign an affidavit. Contrary to Mr Gicheru’s instructions, P-0341

opened a bank account, deposited 300,000 Ksh (about 2,706 euros at the time) and spent

384 the remaining 200,000 Ksh (about 1,804 euros at the time).

143 Between and May 2013, P-0341 went to Mr Gicheru at the request of

the latter, and, in the presence of a lawyer called , signed an affidavit that was

already prepared and that P-0341

376 P-0341, KEN-OTP-0150-0255-R01, p. 0265, para. 53. 377 P-0341, KEN-OTP-0150-0255-R01, p. 0265, para. 53. 378 P-0341, KEN-OTP-0150-0255-R01, p. 0266, para. 58. 379 P-0341, KEN-OTP-0150-0255-R01, p. 0266, para. 58. 380 P-0341, KEN-OTP-0150-0255-R01, p. 0266, para. 59. 381 P-0341, KEN-OTP-0150-0255-R01, p. 0266, para. 60. 382 P-0341, KEN-OTP-0150-0255-R01, p. 0267, para. 60. 383 P-0341, KEN-OTP-0150-0255-R01, p. 0268, paras 62-63. 384 P-0341, KEN-OTP-0150-0255-R01, p. 0268, paras 64-65; Financial Document, KEN-OTP-0159- 1386, p. 1386; Financial Document, KEN-OTP-0149-0126, p. 0126; Financial Document, KEN-OTP- 0149-0125.

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385 . Mr Gicheru told P-0341 that it was an affidavit of withdrawal from the entire

386 387 ICC process. P-0341 was not given a copy of the affidavit he signed. Soon after

P-0341 signed the affidavit, Mr Gicheru told him that he needed P-0274 to bring ICC

witness , and that P-0274 would get 5 million Ksh (about 45,261 euros at the

388 time) in exchange. Mr Gicheru also told P-0341 to make a public statement to the

389 press about his withdrawal as and had done.

P-0341 would later learn that Mr Ruto complained many times to Mr Gicheru about the

390 fact that P-0341 .

144 P-0341 continued to go to Mr Gicheru almost every day, as requested by

Mr Gicheru who P-0341 assumed wanted to ‘check up on [P-0341]’s movements’ and

make sure that ‘[P-0341] was still on his side’. 391 On May 2013, P-0341 went to Mr

Gicheru and received 500,000 Ksh (about 4,526 euros at the time). He

deposited 300,000 Ksh (about 2,706 euros at the time) into his bank account and spent

392 the remaining 200,000 Ksh (about 1,804 euros at the time).

145 Between 9 May and 19 July 2013, at the request of Mr Gicheru, P-0341 had to

sign another affidavit in , stating that he had no evidence against

393 Mr Ruto and that he was withdrawing from the ICC proceedings. Mr Gicheru said

394 that Mr Ruto had requested this document. A few days later, Mr Gicheru told P-0341

that Mr Ruto was very happy with the affidavit and that P-0341 should receive 5 million

Ksh (about 45,261 euros at the time) for that. On that day, however, Mr Gicheru gave

395 him a smaller amount, but superior to 20,000 Ksh (about 180 euros at the time).

385 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 68. 386 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 68. 387 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 68. 388 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 69. 389 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 70. 390 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 70. 391 P-0341, KEN-OTP-0150-0255-R01, p. 0269, para. 71. 392 P-0341, KEN-OTP-0150-0255-R01, p. 0269, paras 72-73; Financial Document, KEN-OTP-0159- 1386, p. 1386; Financial Document, KEN-OTP-0149-0126, p. 0126. 393 P-0341, KEN-OTP-0150-0255-R01, p. 0269, paras 74-75. 394 P-0341, KEN-OTP-0150-0255-R01, p. 0269, para. 74. 395 P-0341, KEN-OTP-0150-0255-R01, p. 0270, para. 77.

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146 On July 2013, Mr Gicheru gave P-0341 100,000 Ksh (about 905 euros at the

time) of which P-0341 deposited 50,000 Ksh (about 452 euros at the time) into his bank

396 account and spent the remaining 50,000 Ksh (about 452 euros at the time).

147 In August or September 2013, at Mr Gicheru’s request, P-0341 met with

Mr Gicheru and

397 398 . Mr Gicheru introduced .

399 .

. 400 Mr Gicheru asked P-0341 to become a witness in support of Mr

Ruto but P-0341 responded that it was not possible given that he was already

401 . On that occasion, Mr Gicheru gave P-0341 between 100,000 Ksh (about

402 905 euros at the time) and 200,000 Ksh (about 1,804 euros at the time).

403 .

148 On two occasions, Mr Gicheru summoned P-0341 because he was

furious that P-0341 had attended a PEV victims meeting and had met with

404 . Mr Gicheru accused him of interacting with white people who were

‘sp[ies]’ for the ICC. 405

149 On 10 October 2013, after receiving a call from Mr Gicheru, P-0341 met with

406 . gave

350,000 Ksh (about 3,158 euros at the time) to P-0341 and less than 100,000 Ksh (about

396 P-0341, KEN-OTP-0150-0255-R01, p. 0270, paras 78-79; Financial Document, KEN-OTP-0159- 1386, p. 1386; Financial Document, KEN-OTP-0149-0126, p. 0126. 397 P-0341, KEN-OTP-0150-0255-R01, p. 0270, para. 83. 398 P-0341, KEN-OTP-0150-0255-R01, p. 0270, para. 83. 399 P-0341, KEN-OTP-0150-0255-R01, p. 0271, para. 84. 400 P-0341, KEN-OTP-0150-0255-R01, p. 0271, paras 84-85, 88. 401 P-0341, KEN-OTP-0150-0255-R01, p. 0271, para. 87. 402 P-0341, KEN-OTP-0150-0255-R01, p. 0271, para. 88. 403 P-0341, KEN-OTP-0150-0255-R01, p. 0271, para. 88, p. 0273, para. 97. 404 P-0341, KEN-OTP-0150-0255-R01, p. 0271, paras 89-90, p. 0273, para. 96. 405 P-0341, KEN-OTP-0150-0255-R01, p. 0271, paras 89-90, p. 0273, para. 96. 406 P-0341, KEN-OTP-0150-0255-R01, p. 0274, para. 99.

No: ICC-01/09-01/20 54/81 15 July 2021

407 905 euros at the time) to . On the following day, P-0341 deposited 300,000

Ksh (about 2,706 euros at the time) into his bank account and spent the remaining

408 50,000 Ksh (about 452 euros at the time).

150 Between October 2013 and April 2014, P-0341 continued to attend

on many occasions and at the request of the latter, who would ‘be

. 409 worried if [P-0341] did not attend During this time-period, P-0341

received amounts of money ranging 20,000 Ksh (about 180 euros at the time) to

200,000 Ksh (about 1,804 euros at the time), which P-0341 did not deposit into a bank

account but spent for ‘[his] farm and general living expenses’. 410

151 On April 2014, after receiving a call from Mr Gicheru, P-0341 met with

who gave him 100,000 Ksh (about 905 euros at the time). had asked

P-0341 to contact and because they had been meeting with the

411 ICC, and then report back to him. P-0341 never complied with the instructions and,

on the same day, he deposited 50,000 Ksh (about 452 euros at the time) into his bank

412 account and spent the remaining 50,000 Ksh (about 452 euros at the time).

152 On April 2014, while P-0341 to meet with

an ICC investigator,

. 413

414 . P-0341 had also learned on

. 415

407 P-0341, KEN-OTP-0150-0255-R01, p. 0274, para. 99. 408 P-0341, KEN-OTP-0150-0255-R01, p. 0274, para. 101; Financial Document, KEN-OTP-0159-1386, p. 1387; Financial Document, KEN-OTP-0149-0126, pp. 0126-0127. 409 P-0341, KEN-OTP-0150-0255-R01, p. 0274, para. 102, p. 0277, para. 117. 410 P-0341, KEN-OTP-0150-0255-R01, p. 0274, para. 102, p. 0277, para. 117. 411 P-0341, KEN-OTP-0150-0255-R01, p. 0275, paras 106-107. 412 P-0341, KEN-OTP-0150-0255-R01, p. 0275, paras 107-108; Financial Document, KEN-OTP-0159- 1386, p. 1390. 413 P-0341, KEN-OTP-0150-0255-R01, p. 0275, paras 109-110. 414 P-0341, KEN-OTP-0150-0255-R01, p. 0259, para. 17, p. 0274, paras 109-111. 415 P-0341, KEN-OTP-0150-0255-R01, p. 0275, para. 110.

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153 At the request of , P-0341 met with

416 . P-0015 told him that he was sent by Mr Ruto to meet him.

told P-0341 that they knew to meet ICC staff,

417 and that they knew it because . P-0341 felt

threatened by this meeting and ‘in great danger’: was angry at him and

threatened him, saying: . 418

419 .

420 .

. 421 Despite the fact that, about two months

422 later, Mr Gicheru called him to ask him to come , P-0341 did not go.

154 P-0341 has received a total of s2 million Ksh (about 18,104 euros at the time)

423 from Mr Gicheru and . He did not receive anything else he was promised.

He was told that he was not given because he

, despite the pressure he

424 received on several occasions to do so.

155 The Chamber notes that the evidence provided in support of this incident

emanates from P-0274 ( ). The Chamber further notes that several factors

buttress the credibility of P-0274: the witness

; he tried to contact the ICC several

times; he gives a rather detailed statement (the way he describes

425 for example ); and he spontaneously cites the names of

and gives specifics about them. Finally, the Chamber recalls that it

416 P-0341, KEN-OTP-0150-0255-R01, pp. 0275-0276, para. 112. 417 P-0341, KEN-OTP-0150-0255-R01, pp. 0275-0276, para. 112. 418 P-0341, KEN-OTP-0150-0255-R01, pp. 0275-0276, para. 112. 419 P-0341, KEN-OTP-0150-0255-R01, p. 0276, para. 113. 420 P-0341, KEN-OTP-0150-0255-R01, p. 0276, para. 113. 421 P-0341, KEN-OTP-0150-0255-R01, p. 0276, para. 113. 422 P-0341, KEN-OTP-0150-0255-R01, p. 0276, para. 115. 423 P-0341, KEN-OTP-0150-0255-R01, p. 0277, para. 117. 424 P-0341, KEN-OTP-0150-0255-R01, p. 0268, para. 70, p. 0276, para. 113, p. 0277, para. 117. 425 P-0274, KEN-OTP-0159-0986-R01, p. 0995, paras 55, 57.

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426 can rely on uncorroborated evidence for the purpose of the present decision.

Accordingly, the Chamber establishes the facts detailed in the following paragraphs.

156 P-0274, and originally from , was a supporter of the

427 PNU during the 2007 elections. For that reason, he was attacked in the course of the

428 2007 PEV . Subsequently, he started

to attend PEV victims meetings, including meetings organised by

429 .

157 In 2011, after the name of the ICC suspects were made public in the proceedings

regarding the Kenya situation, P-0274 began receiving threats

. 430

431 .

432 .

158 As a result, he sought help from his friend

, who told him he was now close to Mr Ruto and put him in touch with

433 .

434 .

435 .

436 .

426 See Defence Written Submissions, para. 93; Defence Reply, para. 89. See also paragraph 38 above. 427 P-0274, KEN-OTP-0159-0986-R01, p. 0988, para. 12. 428 P-0274, KEN-OTP-0159-0986-R01, p. 0988, para. 12. 429 P-0274, KEN-OTP-0159-0986-R01, p. 0988, paras 14-15; OTP Investigator Report, KEN-OTP-0150- 0345; Pre-Trial Chamber II, The Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings , 5 August 2011, ICC-01/09-01/11-249, p. 46; Trial Chamber V, The Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Decision on victims’ representation and participation , 3 October 2012, ICC- 01/09-01/11-460, para. 62. 430 P-0274, KEN-OTP-0159-0986-R01, p. 0989, paras 17, 20. 431 P-0274, KEN-OTP-0159-0986-R01, p. 0989, para. 19. 432 P-0274, KEN-OTP-0159-0986-R01, pp. 0988-0990, paras 14-22. 433 P-0274, KEN-OTP-0159-0986-R01, p. 0990, paras 23-26. 434 P-0274, KEN-OTP-0159-0986-R01, p. 0988, paras 26-30. 435 P-0274, KEN-OTP-0159-0986-R01, p. 0991, para. 32. 436 P-0274, KEN-OTP-0159-0986-R01, p. 0991, para. 33.

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437 .

438 .

159.

, P-0274 received 30,000 Ksh (about 270 euros at the time)

. 439 P-0274 used this money to move to

440 . contacted him and told him that he should receive more

441 money than the 30,000 Ksh (about 270 euros at the time) that he was already given.

442 160. After the elections in 2013, P-0274 began receiving threats again. Towards the

end of 2013, P-0274 met with P-0341 and , who told

him that Mr Gicheru gave them 500,000 Ksh (about 4,526 euros at the time) to stop

providing information to the ICC against Mr Ruto, and that they would receive 500,000

443 Ksh more and be left in peace.

444 .

161 P-0341 brought P-0274 to Mr Gicheru, and Mr Gicheru told P-0274

that the same offer (500,000 Ksh now and the same amount later) was made to him in

445 order to withdraw as a Prosecution witness and to stop assisting the ICC. He added

446 that P-0274 would then ‘be safe’. Mr Gicheru explained that he and others were

giving witnesses money to stop assisting the ICC, and that they needed to reach

everyone involved in this case since ‘the boss’, who P-0274 understood to be Mr Ruto,

‘wanted no stone left unturned’. 447 Mr Gicheru also asked P-0274 to give him the names

448 of other OTP witnesses. Mr Gicheru gave P-0274 a phone number from which he

449 said he would call P-0274 in the future. Mr Gicheru also gave him some money to

437 P-0274, KEN-OTP-0159-0986-R01, pp. 0991-0992, paras 27-36. 438 P-0274, KEN-OTP-0159-0986-R01, p. 0992, para. 37. 439 P-0274, KEN-OTP-0159-0986-R01, pp. 0992-0993, para. 40. 440 P-0274, KEN-OTP-0159-0986-R01, p. 0993, para. 41. 441 P-0274, KEN-OTP-0159-0986-R01, p. 0993, para. 41. 442 P-0274, KEN-OTP-0159-0986-R01, p. 0994, para. 49. 443 P-0274, KEN-OTP-0159-0986-R01, pp. 0994-0995, paras 49-54. 444 P-0274, KEN-OTP-0159-0986-R01, pp. 0994-0995, para. 52. 445 P-0274, KEN-OTP-0159-0986-R01, pp. 0995-0996, paras 55-60. 446 P-0274, KEN-OTP-0159-0986-R01, p. 0996, para. 60. 447 P-0274, KEN-OTP-0159-0986-R01, p. 0996, paras 58-59. 448 P-0274, KEN-OTP-0159-0986-R01, p. 0996, para. 61. 449 P-0274, KEN-OTP-0159-0986-R01, p. 0996, para. 61.

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450 reimburse him for transport back home. Feeling ‘very sceptical about all this’, P-

451 0274 reported what had happened to an ICC staff member.

162 later, P-0274 received a call from that

and who asked him to come to

452 to meet with Mr Gicheru the following day. P-0274 switched off his phone and did

453 not go to the meeting because he was scared. When he switched his phone back on,

454 he saw that he had received a new threat from another telephone number. After that,

455 he never dealt with Mr Gicheru again.

163 Several weeks after his meeting with Mr Gicheru, P-0274 received a phone call

from who offered him if he

456 agreed to locate . P-0274 pretended to cooperate but told

457 .

458 .

164 According to P-0274, a person named was still trying to contact him,

, and told P-0274 that Mr Ruto wanted

. 459 460 to meet him in person.

165.

461 .

. 462 463 .

450 P-0274, KEN-OTP-0159-0986-R01, p. 0996, para. 61. 451 P-0274, KEN-OTP-0159-0986-R01, p. 0996, para. 62. 452 P-0274, KEN-OTP-0159-0996-R01, p. 0996, para. 63. 453 P-0274, KEN-OTP-0159-0996-R01, pp. 0996-0997, para. 64. 454 P-0274, KEN-OTP-0159-0996-R01, pp. 0996-0997, para. 64. 455 P-0274, KEN-OTP-0159-0996-R01, p. 0997, para. 65. 456 P-0274, KEN-OTP-0159-0996-R01, p. 0997, para. 67. 457 P-0274, KEN-OTP-0159-0996-R01, p. 0997, para. 67. 458 P-0274, KEN-OTP-0159-0996-R01, p. 0997, para. 68. 459 P-0274, KEN-OTP-0159-0996-R01, pp. 0997-0998, paras 70, 73. 460 P-0274, KEN-OTP-0159-0996-R01, p. 0997, para. 70. 461 P-0274, KEN-OTP-0159-0986-R01, pp. 0993-0994, paras 44-46, p. 0996, para. 62. 462 P-0274, KEN-OTP-0159-0996-R01, p. 0998, para. 73. 463 P-0274, KEN-OTP-0159-0996-R01, p. 0998, para. 73.

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464 . 465 .

Conclusion of the Chamber

166 The Chamber finds that the physical perpretrators of the acts mentioned above relating to the eight incidents ‘intentionally’ tried to corruptly influence the witnesses or potential witnesses and/or interfere with the attendance or testimony of the witnesses or potential witnesses in the sense that they knew that their actions would result in corruptly influencing and interfering with the witnesses. Therefore, the Chamber finds that both the material and mental elements of the offence of corruptly influencing a witness and/or interfering with the attendance or testimony of a witness are fulfilled. As a result, the facts established above all constitute an offence of corruptly influencing and interfering with a witness within the meaning of article 70(1)(c) of the Statute.

VI. RESPONSIBILITY

Article 25(3)(a) of the Statute – Direct co-perpetration

167 The Chamber recalls rule 163(1) of the Rules, according to which ‘the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70’. Accordingly, all modes of liability set forth in article 25(3) of the Statute are applicable, in principle, pursuant to rule 163(1) of the Rules and the Chamber’s assessment of the role of the suspect shall be governed 466 by the interpretation of this provision. 168. In this section, the Chamber will set out the applicable law for the mode of liability relevant to its findings which, for the reasons provided in the present decision, is the responsibility under article 25(3)(a) of the Statute as direct co-perpetrator.

464 P-0274, KEN-OTP-0159-0996-R01, p. 0998, para. 73. 465 P-0274, KEN-OTP-0159-0996-R01, p. 0998, para. 73. 466 Bemba et al. Appeal Judgment , para. 680; Bemba et al. Trial Judgment , para. 54; Bemba et al. Confirmation Decision , para. 32.

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169 Article 25(3)(a) of the Statute provides expressly for three forms of individual criminal responsibility: a person who commits a crime ‘as an individual’, ‘jointly with another person’, or ‘through another person, regardless of whether that other person is criminally responsible’. 467

170 Pursuant to article 25(3)(a), second alternative, of the Statute, ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person [c]ommits such a crime, […] jointly with another’.

171 According to the jurisprudence of the Court, the ‘concept of co-perpetration based on joint control over the crime is rooted in the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the persons has overall control [ viz. individually] over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission 468 of the crime by not carrying out his or her task’. In these circumstances, any person making a contribution ‘can be held vicariously responsible for the contributions of all the others, and, as a result, can be considered as a principal to the whole crime’. 469

i. Objective Elements 172. Consistent with the established jurisprudence of the Court, the Chamber recalls that, to hold an individual criminally responsible as a co-perpetrator under the notion of ‘control over the crime’, 470 it must be satisfied that (i) there was a common plan between at least two persons, and (ii) the contribution of the co-perpetrators was essential.

467 Trial Chamber IX, The Prosecutor v. Dominic Ongwen , Trial Judgment , 4 february 2021, ICC-02/04- 01/15 (the ‘ Ongwen Trial Judgment’), para. 2781; Trial Chamber VI, The Prosecutor v. Bosco Ntaganda , Judgment , 8 July 2019, ICC-01/04-02/06-2359 (the ‘ Ntaganda Trial Judgment’), para. 771. 468 Bemba et al. Trial Judgment , para. 62 referring to Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo , Judgment pursuant to Article 74 of the Statute (the ‘ Lubanga Trial Judgment’), 14 March 2012, ICC-01/04-01/06-2842, para. 469; Katanga Confirmation Decision , paras 520-521. See also Lubanga Appeal Judgment , paras 469, 473; Al Hassan Confirmation Decision , para. 797; Lubanga Confirmation Decision , para. 342. 469 Bemba et al . Trial Judgment , para. 62; Al Hassan Confirmation Decision , para. 797; Lubanga Confirmation Decision , para. 326. See also Lubanga Appeal Judgment , para. 445. , para. 64, n. 105 (‘The Court has accepted the notion of “control over the 470 Bemba et al . Trial Judgment crime” as the distinguishing criterion between principals and accessories where a criminal offence is committed by a plurality of persons.’) and references cited therein. See in particular Lubanga Appeal Judgment , paras 469-472.

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173 As regards the first objective element, the Chamber must be satisfied that the accused and at least one other individual worked together (‘jointly’) in the commission

471

of the offence(s) on the basis of an agreement or common plan. It is this agreement

or common plan that ties the co-perpetrators together and justifies reciprocal imputation

472

of their respective acts. Accordingly, participation in the commission of the

offence(s) without coordination with one’s co-perpetrator(s) falls outside the scope of

473

co-perpetration. The agreement or common plan may be express or implied,

474

previously arranged or materialise extemporaneously. Its existence may be inferred

475

from subsequent concerted action of the co-perpetrators, and proven by direct

476

evidence or inferred from circumstantial evidence.

174 With regard to the second objective element, the accused must make an essential

contribution within the framework of the agreement or common plan in a coordinated

manner resulting in the fulfilment of the material elements of the offence(s), without

477

which the commission of the offence(s) would not be possible. To hold an accused

liable as a co-perpetrator under article 25(3)(a) of the Statute, it has to be established,

inter alia , that he or she had control over the crime, by virtue of his or her essential

471 Bemba et al. Appeal Judgment , para. 818; Lubanga Appeal Judgment , para. 445; Bemba et al. Trial Judgment , para. 65; Lubanga Trial Judgment , paras 980-981; Al Hassan Confirmation Decision , para. 799; Ruto and Sang Confirmation Decision , para. 301; Bemba Confirmation Decision , para. 350. 472 Bemba et al. Appeal Judgment , para. 818; Lubanga Appeal Judgment , para. 445; Bemba et al. Trial Judgment , para. 65; Lubanga Trial Judgment , para. 981; Al Hassan Confirmation Decision , para. 799; Al Mahdi Confirmation Decision , para. 24. 473 Bemba et al. Appeal Judgment , para. 763; Bemba et al. Trial Judgment , para. 65; Al Hassan Confirmation Decision , para. 799. See also Katanga Confirmation Decision , para. 522; Lubanga Confirmation Decision , para. 343. 474 Lubanga Appeal Judgment , para. 445; Lubanga Trial Judgment , para. 988 ( see also paras 980-981); Ntaganda Trial Judgment , para. 775; Bemba et al. Trial Judgment , para. 66; Al Hassan Confirmation Decision , para. 800; Al Mahdi Confirmation Decision , para. 24; Ruto and Sang Confirmation Decision , para. 301; Katanga Confirmation Decision , para. 523; see also Muthaura et al. Confirmation Decision , para. 399. 475 Bemba et al. Trial Judgment , para. 66; Al Hassan Confirmation Decision , para. 800; Ruto and Sang Confirmation Decision , para. 301; Katanga Confirmation Decision , para. 523; Lubanga Confirmation Decision , para. 345. See also Bemba et al. Appeal Judgment , para. 1306 (‘The Appeals Chamber recalls that there is no bar to a trial chamber using evidence to infer, either backwards of forward in time, an accused’s involvement in a common plan.’). 476 Bemba et al. Trial Judgment , para. 66; Lubanga Trial Judgment , para. 988; Al Hassan Confirmation Decision , para. 800. See also Bemba et al. Appeal Judgment , paras 763-764. 477 Bemba et al. Trial Judgment , para. 68; Bemba Confirmation Decision , para. 350. See also Lubanga Appeal Judgment , paras 468-469; Lubanga Trial Judgment , paras 989 et seq ; Al Hassan Confirmation Decision , para. 802; Lubanga Confirmation Decision , para. 346.

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contribution to it and the resulting power to frustrate its commission, even if that

478

essential contribution was not made at the execution stage of the crime.

175 The requirement that the co-perpetrator’s contribution be ‘essential’ has been consistently and invariably established in the Court’s jurisprudence.

479

Suffice it to say here that only those to whom ‘essential’ tasks have been assigned – and who

consequently have the power to frustrate the commission of the offence by not

480

performing their task – can be said to have joint control over the offence(s). It is not

necessary that each co-perpetrator personally and directly carry out the offence(s), or

that she or he be present at the scene of the criminal offence, as long as she or he

481

exercised, jointly with others, control over the criminal offence. What is required is

a normative assessment of the role and activities of the accused person in the specific

482

circumstances of the case, taking into account the division of tasks. The decisive

consideration for determining whether an accused person qualifies as a co-perpetrator

is whether the individual contribution of the accused within the framework of the

agreement was such that, without it, the crime could not have been committed or would

483

have been committed in a significantly different way.

478 Bemba et al. Appeal Judgment , para. 810; Lubanga Appeal Judgment , para. 473. 479 Bemba et al. Appeal Judgment , para. 810; Lubanga Appeal Judgment , paras 468-469; Bemba et al. Trial Judgment , para. 69; Al Hassan Confirmation Decision , para. 802; Muthaura et al. Confirmation Decision , paras 297, 401-404, 419; Ruto and Sang Confirmation Decision , para. 305; Mbarushimana Confirmation Decision , paras 273, 279; Banda and Jerbo Confirmation Decision , paras 136-138; Abu Garda Confirmation Decision , para. 350; Katanga Confirmation Decision , paras 524-525; Lubanga Confirmation Decision , para. 346. See also Lubanga Appeal Judgment , paras 462-468; Lubanga Trial Judgment , paras 995-999. 480 Lubanga Appeal Judgment , para. 473; Bemba et al. Trial Judgment , para. 69; Al Hassan Confirmation Decision , para. 803; Lubanga Confirmation Decision , para. 347. 481 Bemba et al. Trial Judgment , para. 69 referring to Lubanga Appeal Judgment , paras 458, 460, 465- 466, stating that ‘in support of this interpretation, the Appeals Chamber draws on article 25(3)(a), third alternative, of the Statute, which embodies the commission of an offence “through another person”. In this case, the perpetrator, who did not carry out the incriminated conduct, may bear the same or even more blameworthiness than the person actually commit ting the criminal offence.’ See also Al Hassan Confirmation Decision , para. 803, n. 2131. 482 Bemba et al. Appeal Judgment , para. 820; Lubanga Appeal Judgment , paras 466, 473; Bemba et al. Trial Judgment , para. 69; Al Hassan Confirmation Decision , para. 803. See also Lubanga Trial Judgment , paras 1000-1001. 483 Bemba et al. Appeal Judgment , para. 820; Al Hassan Confirmation Decision , para. 808.

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176 The Appeals Chamber held that

Given that the essential contribution does not have to be made at the execution stage, it is clear that acts that do not, as such, form the actus reus of the crime or offence in question may nevertheless be taken into account when determining whether the accused has made an essential contribution to that crime or offence. Therefore, the essential contribution may take many forms and need not be ‘criminal’ in nature. 484

177 The Appeals Chamber also found that ‘[p]rovided that the incidents occur within

the framework of a criminal common plan, to which the co-perpetrator made an essential contribution with intent and knowledge, it is not necessary for the co- 485 perpetrator to make an essential contribution to each criminal incident’.

ii. Subjective elements

178 In addition to the Chamber’s explanations in relation to the requisite mens rea

486 under article 70(1)(c) of the Statute made above, the Chamber recalls that it must be satisfied of the co-perpetrators’ mutual awareness that implementing the common plan would result in the fulfilment of the material elements of the crimes, and that they nevertheless performed their actions with the purposeful will (intent) to bring about the material elements of the crimes, or with the awareness that, ‘in the ordinary course of events’, the fulfilment of the material elements will be a virtually certain consequence

487 of their actions.

179 The Chamber recalls that it is precisely the co-perpetrators’ mutual awareness and acceptance of this result that justifies that the contributions made by the others may be attributed to each of them, and that they be held criminally responsible as principals 488 to the whole offence.

, para. 810 (‘Given that the essential contribution does not have to be 484 Bemba et al. Appeal Judgment made at the execution stage, it is clear that acts that do not, as such, form the actus reus of the crime or offence in question may nevertheless be taken into account when determining whether the accused has made an essential contribution to that crime or offence. The Appeals Chamber considers, therefore, that the essential contribution may take many forms and need not be “criminal” in nature.’). 485 Bemba et al. Appeal Judgment , para. 812. 486 See paragraph 51 above. 487 Bemba et al. Trial Judgment , para. 70; Ruto and Sang Confirmation Decision , para. 333; Bemba Confirmation Decision , para. 370; Katanga Confirmation Decision , para. 533. 488 Bemba et al. Trial Judgment , para. 71; Lubanga Confirmation Decision , para. 362.

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180 Having reviewed the evidence presented before it, the Chamber finds that there are substantial grounds to believe that Mr Gicheru is criminally responsible under article 25(3)(a) of the Statute as a co-perpetrator for the commission of offences against the administration of justice set out in article 70(1)(c) of the Statute in Kenya between 489 April 2013 and the closure of the Ruto and Sang case on 10 September 2015, in the furtherance of the common plan described below. 181. The Chamber finds that at least Mr Gicheru, Mr Maiyo, Mr Simatwo, Mr Bett, Mr Yebei and Mr Barasa acted in furtherance of a common plan with the ultimate goal of undermining the Prosecution’s case in the Ruto and Sang case by preventing Prosecution witnesses from testifying, including persons perceived as potential witnesses. In order to reach this goal, they identified, located, and contacted Prosecution witnesses, offered and/or payed them financial or other benefits, and/or threatened or intimidated them, in order to induce them to withdraw as Prosecution witnesses, refuse to or cease cooperating with the Prosecution and/or the Court, and/or to recant the evidence which they had provided to the Prosecution. i. The existence of a common plan 182. According to the Prosecutor, Mr Gicheru committed the offences charged jointly with a number of other people. Among the members of that common plan organisation, the Prosecutor distinguishes between the ‘managers’ (Mr Gicheru, Mr Simatwo, Mr Maiyo, and Mr Busienei), the ‘intermediaries’ (Mr Yebei, Mr Bett, Mr Barasa, and Mr Kosgei), and the ‘successfully corrupted Prosecution witnesses’, who ‘also acted as Intermediaries and helped to further the objective of the Common plan’ (P-0397, P- 490 0800, P-0495, P-0516, and P-0341). 183. After reviewing the evidence, the Chamber finds that there are substantial grounds to believe that a group of persons acted in the furtherance of a common plan, which can be defined as follows.

489 Trial Chamber V(A), The Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Notification of closure of the Prosecution’s case , 10 September 2015, ICC-01/09-01/11-1954. 490 DCC, paras 40-42. No: ICC-01/09-01/20 65/81 15 July 2021

184 The ultimate goal of the common plan was to undermine the Prosecutor’s case in the Ruto and Sang case by preventing Prosecution witnesses from testifying, including persons perceived as potential witnesses. 185. The members of the common plan decided that the means employed to reach this goal would be to identify, locate, and contact Prosecution witnesses, offer and/or pay them financial or other benefits, and/or threaten or intimidate them, in order to induce them to withdraw as Prosecution witnesses, refuse to or cease cooperating with the Prosecutor and/or the Court, and/or to recant the evidence which they had provided to the Prosecutor. 186. The Chamber takes particular note of the pattern of the witness corruption scheme: a first contact with a person who already knew the targeted witness - when possible - to convince the said target to attend a meeting with Mr Gicheru (and sometimes ); during the subsequent meeting an offer was made; the fact that witnesses were paid or promised money in cash instalments and told not to deposit it into the bank; and the fact that once they signalled their agreement to participate, some witnesses were asked to locate and/or contact other targeted witnesses. In the view of the Chamber, all of this shows that the co-perpetrators acted in unison, which is, in accordance with the Appeals Chamber jurisprudence, a strong indicator that, by doing 491 so, they were implementing a common plan of which they agreed upon. 187. The Chamber also notes that the common plan was criminal by essence since both its aim and means were to commit offences against the administration of justice, and that anybody engaging in the furtherance of the common plan could not ignore this state of fact. ii. The members of the common plan 188. The Chamber finds that there are substantial grounds to believe that at least Mr Gicheru, Mr Maiyo, Mr Simatwo, Mr Bett, Mr Yebei, and Mr Barasa were all part of the common plan organisation, and acted collectively and in a concerted manner in the furtherance of the common plan. They all acted as a link in the chain of criminality

491 Appeals Chamber, The Prosecutor v. Bosco Ntaganda , Public redacted version of Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’ , 30 March 2021, ICC-01/04-02/06-2666-Red (A2) (confidential version notified same day), para. 19.

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and the action of each of them was essential in furthering the prohibited activity and

492 common plan. All in all, the control over the offence was collective.

189 As asserted by the Prosecutor, the Chamber finds that the evidence shows that Mr

493 494 495 Gicheru, Mr Maiyo, and Mr Simatwo (the ‘managers’) had played a particular

role in the furtherance of the common plan, and in the dynamics of the group of persons

496 who agreed on the common plan. They also had a particular proximity with Mr Ruto,

and seemed to enjoy a special status in comparison with the other members of the

common plan organisation. The tasks they carried out reveal that they were more

involved in the overall control and implementation of the common plan (their tasks

were more systematic and took place over the full period covered by the common plan

furtherance). In this regard, it is worth noting that they were all involved in several witness corruption schemes. appears to have been central

in the process of meeting with witnesses, either as a place where first contact meetings

happened to ensure that targeted witnesses were ‘under control’ by requesting them to ‘pass by’ regularly, or in the payment of corrupted witnesses. 497 Mr Simatwo

was consulted before proceeding with the payment of at least certain witnesses and was

498 in charge of the treasury. Several witnesses refer to them as the ‘core’ of the common

492 Lubanga Trial Judgment , para. 994. 493 See paragraphs 204-210 below. 494

. 495

. 496 Concerning Mr Simatwo, see ; K.E. Kariuki,’American Chronicle Writer Threatened by RUTO Allies’, American Chronicle, 12 July 2010, KEN-OTP-0047-0098, pp. 0098-0099. Concerning Mr Maiyo, see paragraph 183, n. 502 below. The Chamber notes that the Defence argues that ‘[n]o concrete or tangible evidence supports’ the fact of Mr Gicheru’s association with Mr Ruto. The Chamber notes that the statement of P-0397 and P-0800 corroborates each other on the fact that Mr Gicheru has told them that he had been to Kapsabet High School with Mr Ruto, and that they were close friends. In any event, the Chamber notes that this question remains accessory, given the amount of evidence showing the involvement of Mr Gicheru on the furtherance of the common plan. See Defence Written Submissions, para. 4; Prosecution Response, para. 18; Defence Reply, para. 23; P-0397, KEN- OTP-0125-0434-R01, p. 0437; P-0800, KEN-OTP-0135-0113, p. 0019. 497 See paragraphs 64, 68, 69, 71, 76, 79, 84, 139, 141, 143, 145, 148, 153 above. 498 See paragraphs above.

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plan organisation, or ‘the people’ working for Mr Ruto in order to corrupt witnesses. 499

In this regard, relevant is the fact that explained that

500 .

190 At the time of the events, Mr Maiyo was the ‘Constituency Development Fund’

chairman in Eldoret and had been appointed to this position by Mr Ruto, who was the

then Member of Parliament elected in the region before becoming President of

501 502 Kenya. Mr Maiyo was known to be a close friend and supporter of Mr Ruto.

191 Mr Simatwo was the head of the ‘African Merchant Assurance Company’, an 503 504 insurance company, to which Mr Ruto was a shareholder.

192 For the same reasons as mentioned above, the Chamber finds that there are

substantial grounds to believe that, based on circumstantial evidence and the tasks

undertaken by Mr Maiyo and Mr Simatwo, the only inference possible is that they

shared the intent to implement the common plan. The Chamber also finds, as explained 505 below, that Mr Gicheru shared this intent.

193 As to the ‘intermediaries’, the Chamber finds that although they did not enjoy the

same status as the managers, they can nevertheless also be considered as forming part

of the common plan organisation. Their actions show that, at some point of time, they

adhered to the common plan and had the intent to act in the furtherance of this common

plan.

499 P-0397, KEN-OTP-0125-0461-R01, p. 0465. See paragraphs above. 500 . 501 P-0274, KEN-OTP-0159-0986-R01, p. 0997, para. 66; P-0341, KEN-OTP-0150-0255-R01, pp. 0277- 0278, para. 122; P-0397, KEN-OTP-0074-0264-R01, p. 0292, para. 142; P-0516, KEN-OTP-0087-0031- R01, p. 0036, para. 29. 502 CIPEV testimony , KEN-OTP-0007-0852, p. 0865; P-0397, KEN-OTP-0074-0264-R01, p. 0292, para. 142; P-0516, KEN-OTP-0087-0031-R01, p. 0036, para. 29; K.E. Kariuki,’American Chronicle Writer Threatened by RUTO Allies’, American Chronicle, 12 July 2010, KEN-OTP-0047- 0098, p. 0098. 503 Web Page, KEN-OTP-0159-1731. 504 Online Press Article, M. Roberto, ‘Firm associated with Ruto defends itself against suspicious Ksh 3.4 million payment to Sonk’, Tuko, KEN-OTP-0159-1731; K. Kangethe, ‘Ruto, the self made deputy president’, CapitalFM, KEN-OTP-0159-1735. 505 See paragraph 214 below.

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506 507 194. The evidence shows, to the required standard, that Mr Bett, Mr Yebei, and 508 Mr Barasa, engaged, in a concerted and coordinated manner, in: contacting Prosecution witnesses, trying to convince them to recant their evidence and/or contact other witnesses in exchange for money or other benefits, organise meetings with the managers and proceeding with payments of witnesses. 195. At the time of the events, Mr Bett used to work for a human rights organisation 509 called Kalenjin Youth Alliance, which collected testimonies of victims of the PEV. 510 Mr Barasa was a journalist from Eldoret. 196. Because the intermediaries did not participate in the formulation of the common plan, and only initiated action in the furtherance of the common plan after having been bribed themselves, it could be argued that they did not form part of the common plan organisation, but were mere executors. However, the Chamber is of the view that by the very nature of their tasks (directly bribing witnesses), it cannot be said that they were mere executors who did not know what the common plan was about. On the

506 See

. 507 See

. 508 See

. 509 P-0613, KEN-OTP-0102-0178, p. 0180, para. 14. 510 P-0341, KEN-OTP-0150-0255-R01, p. 0263, para. 42; P-0274, KEN-OTP-0159-0986-R01, p. 0991, para. 30; KEN-OTP-0153-0497.

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contrary, by the very nature of their action and awareness of the consequences of the implementation of the common plan, they became participants and members of the common plan organisation. 197. It could also be argued that the fact that they perpetrated such acts in exchange for benefits, shows that the only reason as to why they executed their tasks was for financial motive and that, therefore, they lack the required intent. However, the Chamber recalls that international criminal law jurisprudence has established that 511 motives are irrelevant and distinct from intent. Again, the very nature of their tasks (directly bribing witnesses) shows that they knew that their actions would contribute to the common plan, and therefore that they shared the intent of furthering the common plan and adhered to it. 198. In the view of the Chamber, the question of whether they only meant to corrupt witnesses, or whether they also shared the ‘ultimate goal’ of the common plan (in the instance that the Main Case fails), is irrelevant since both objectives are inseparable. The failing of the Main Case is the only possible consequence of corruptly influencing the witnesses and/or interfering with their attendance or testimony, and they could not ignore that this would happen if the corruption scheme was successful. 199. Finally, the Chamber notes that the evidence also shows the multitude of contacts the members of the common plan organisation (both managers and intermediaries) had between each other, either by phone or physically, for example when they worked, together as a group, at convincing a witness to withdraw, visited the same witness or gathered at . 512 513 200. However, the Chamber finds that Mr Busienei, Mr Kosgei, P-0397, P-0516, P-0800, P-0495 and P-0341 cannot be qualified as members of the common plan. The Chamber finds that the Prosecutor has not demonstrated, to the required standard, that

The Prosecutor v. Kvočka et al. 511 ICTY, Appeals Chamber, , Judgement , 28 February 2005, IT-98-30- /1-A, para. 106 referring to The Prosecutor v. Jelisić , Judgement, 5 July 2001, IT-95-10-A, para. 49, The Prosecutor v. Tadić , Judgement , 15 July 1999, IT-94-1-A, para. 269, The Prosecutor v. Krnojelac , Judgement, 17 September 2003, IT-97-25-A, para. 102. 512 See DCC, para. 40 and n. 81 and evidence cited therein, para. 41(d) and n. 102-104 and evidence cited therein. See in particular . 513 See DCC, para. 40 and n. 85, para. 42(d) and n. 102-104 and evidence cited therein. See in particular

.

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they had made an essential contribution to the furtherance of the common plan. The evidence shows that each of them intervened only once to contact and try to convince one single other witness (except for P-0800) to meet with Mr Gicheru or to withdraw 514 as Prosecution witnesses. In the eyes of the Chamber, those occasional and limited participations cannot be considered as amounting to providing an ‘essential contribution’ to the furtherance of the common plan. 201. Regarding the arguments raised by the parties, the Chamber notes that the Defence alleges that

. 515 The Chamber agrees with the Prosecutor that, even if proven, is not incompatible with the role played by Mr Gicheru, and that, in any event, the Defence does not show the contrary. 202. As regards the Defence’s argument that ‘[t]here is no evidence that Mr […] Gicheru had any dealings with these individuals concerning any of the witnesses, except MP [Busienei]’, the Chamber considers that under article 25(3)(a) of the Statute, it is not a requirement for the Prosecutor to show that the suspect was in contact with each and every member of the common plan organisation in the context of each incident, as suggested by the Defence, provided that – as it is the case in the present instance – the evidence shows that they all acted in furtherance of the common plan, and that their contribution was essential. In addition, the fact that they acted in a concerted manner can be demonstrated based on circumstantial evidence. The Chamber also recalls that it has established Mr Gicheru’s personal and direct involvement in corrupting, or attempting to corrupt witnesses P-0397, P-0516, P-0613, P-0800, P-0495, P-0341, and 516 P-0274.

514 The Prosecutor alledges that: P-0397 contacted P-0516 and took him to ( See DCC, para. 86); P-0516 urged P-0613 to withdraw as a witness ( See DCC, para. 103); P-0800 approached P-0495 ( See DCC, para. 193) and contacted P-0613 to offer her payment in exchange for recanting her evidence ( See DCC, para. 151); P-0495 approached P-0613 in order to convince her to meet Mr Gicheru ( See DCC, para. 209). 515 Defence Written Submissions, para. 4, h; Defence Reply, para. 26. 516 See paragraphs 204-210 below. The Chamber notes that although it has not established the direct involvement of Mr Gicheru as regards P-0536, the charges are nonetheless confirmed below against Mr Gicheru as regards the offences related to this witness, based on the principal of shared responsibility

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iii. Mr Gicheru’s essential contribution to the furtherance of the common plan 203. The Chamber recalls that it has established the contributions of Mr Gicheru as follows. 204. As regards P-0397, Mr Gicheru: in April 2013 instructed to approach P-0397 in order to persuade him to meet with Mr Gicheru for the purpose of offering him money in exchange for his withdrawal as a Prosecution witness in the 517 Main Case, which they did; in April and May 2013 met P-0397 , several times and offered him 5 million Ksh in cash instalments, of which Mr Gicheru then paid P-0397 a total of 1 million Ksh in order for P-0397 to withdraw as a Prosecution witness in the Main Case, to cease cooperating 518 with the ICC, and to sign an affidavit to that effect; on 9 May 2013 arranged, , for to prepare an affidavit stating that P-0397 no longer intended to testify against any accused persons before the ICC, which included Mr Ruto and Mr Sang, and wished to withdraw his statements against the said accused persons, and instructed P-0397 to sign it, which P- 519 0397 did; and on 7 December 2013, , threatened or intimidated P-0397, accusing him of still being in touch with the ICC, of wanting to 520 send Mr Ruto to jail and of trying to have Mr Gicheru arrested. 205. As regards P-0516, Mr Gicheru: during the period of April to May 2013 instructed P-0397 to approach P-0516 in order to persuade P-0516 to meet with Mr Gicheru for the purpose of offering him money in exchange for his withdrawal 521 as a Prosecution witness in the Main Case, which P-0397 did; during that same period met P-0516 several times , and offered him 800,000 Ksh in cash instalments, of which Mr Gicheru then paid P-0516 a total of at least 500,000 Ksh, to withdraw as a Prosecution witness in the Main Case, recant his evidence and sign an

between all the members of the common plan organisation (or of the reciprocal imputation of their respective acts). See paragraphs 173, 177 above. 517 See paragraphs 62-64 above. 518 See paragraphs 65-68 above. 519 See paragraph 69 above. 520 See paragraph 70 above. 521 See paragraphs 76-79 above.

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522 affidavit to that effect, which P-0516 did; and asked P-0516 whether he knew ‘other

people like you’, meaning other witnesses, in order to induce P-0516 to corruptly

523 524 influence such witnesses, which P-0516 did.

206 As regards P-0613, Mr Gicheru: at the end of April 2013 offered

a sum of money to obtain P-0613 for the purpose of trying

525 to locate her in the context of the corruption scheme; in July 2013 instructed

to to P-0613 so that she could be contacted by the members of the

526 common plan in the context of the witness corruption scheme; again in July 2013

induced to offer P-0613 financial incentives

in exchange for her withdrawal as a Prosecution witness and to report back to him,

527 which did with the assistance of P-0800; and in September 2014 induced

P-0495 to approach P-0613 to convince her to withdraw as a Prosecution witness in the

528 Main Case, which P-0495 did.

207 As regards P-0800, Mr Gicheru: instructed to contact P-0800 to convince

529 him to withdraw as Prosecution witness in the Main Case; held a meeting with,

among others, P-0800 , Kenya, during which he offered P-0800 between 1,5

530 and 2 million Ksh; accompanied P-0800 to a law firm in Nairobi where P-0800

531 signed an affidavit related to ; and

ordered that an affidavit concerning P-0800’s own withdrawal from the ICC

532 proceedings be prepared.

208 As regards P-0495, Mr Gicheru: gave P-0800 travelling money and

in order for P-0800 to bring P-0495 to him (Mr Gicheru).

209 As regards P-0341, Mr Gicheru: paid to take P-0341

533 ; was present at the meeting

522 See paragraphs 80, 81, 83 above. 523 See paragraph 103, in particular , n. 249 above. 524 See paragraph 103, in particular , n. 249 above. 525 See paragraph 109 above. 526 See paragraph 110 above. 527 See paragraph 111 above. 528 See paragraphs 105-106, 112 above. 529 See paragraph 118 above. 530 See paragraph 119 above. 531 See paragraph 120 above. 532 See paragraph 120 above. 533 See paragraph 139 above.

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when an offer was made to P-0341 for him to stop attending ICC meetings, and he was

534 535 requested to locate other ICC witnesses; threatened P-0341, at the said meeting,

536 but also on two other occasions; requested P-0341 to locate other ICC witnesses

537 several times; was ‘following up’ with P-0341 by requesting him to pass by

538 regularly; made him sign affidavits stating he was withdrawing from the ICC

539 proceedings; organised the transition for to continue to follow up with P-

0341 and paid P-0341 350,000 Ksh on October 2013, 100,000 Ksh on

540 541 April 2014; directly paid P-0341 500,000 Ksh on May 2013, 500,000 Ksh on

542 543 May 2013, 100,000 Ksh on July 2013, between 100,000 and 200,000 Ksh in

544 August or September 2013, other amounts ranging from 20,000 Ksh and 200,000

545 Ksh between October 2013 and April 2014; and requested P-0341 to become a

546 witness for Mr Ruto.

210 As regards P-0274, Mr Gicheru, : offered him 1 million

Ksh for ceasing to be an ICC witness and assisting the ICC, and threatened him by

stating that, then, P-0274 would be safe; and requested him to give the names of other

547 ICC witnesses.

211 The Chamber notes that it has established Mr Gicheru’s direct involvement and

participation in the witness corruption scheme of seven out of the eight incidents.

212 In addition, the Chamber notes that the evidence reveals that

, was a crucial place in the system of implementation of the

common plan, as it was where members of the common plan organisation gathered,

where many meetings with witnesses had taken place with the view of convincing them

to withdraw from ICC proceedings, and where witnesses have received cash

534 See paragraph 140 above. 535 See paragraph 140 above. 536 See paragraph 148 above. 537 See paragraphs 141, 143 above. 538 See paragraphs 141, 144, 150 above. 539 See paragraphs 143, 145 above. 540 See paragraphs 195, 197 above. 541 See paragraph 142 above. 542 See paragraph 144 above. 543 See paragraph 146 above. 544 See paragraph 147 above. 545 See paragraph 150 above. 546 See paragraph 147 above. 547 See paragraph 161 above.

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548 instalments. The Chamber also recalls that it has established that Mr Gicheru 549 proceeded personally with the payment of witnesses P-0397, P-0516, and P-0341. 213. For the foregoing reasons, the Chamber finds, to the required standard, that Mr Gicheru’s contribution to the furtherance of the common plan has been essential. iv. Mr Gicheru’s mens rea 214. On the basis of the above analysis, the Chamber finds substantial grounds to believe that Mr Gicheru meant to engage in his conduct and was aware that his role was essential to the implementation of the common plan, and that due to the essential nature of his tasks, he would have frustrated its implementation by refusing to activate the mechanisms that led to the commission of the offences. v. Conclusion on Mr Gicheru’s responsibility 215. The Chamber recalls that co-perpetration under article 25(3)(a) of the Statute bears the imputation to each member of the common plan of their respective acts. Having found, to the required standard, that a common plan existed, that Mr Gicheru’s contribution to the implementation of that common plan was essential, that Mr Gicheru had the required intent, and that the offences were committed in furtherance of the common plan, the Chamber accordingly confirms the charges against Mr Gicheru for the offences set out in article 70(1)(c) of the Statute and established above with respect to P-0397, P-0516, P-0613, P-0800, P-0495, P-0536, P-0341, and P-0274.

Alternatives modes of liability pleaded by the Prosecutor

216 The Chamber notes that in the DCC, the Prosecutor requested that charges against Mr Gicheru be confirmed for all incidents under the mode of liability of ‘direct coperpetration’ pursuant to article 25(3)(a) of the Statute, but also requested that, for the same acts, alternative modes of liability be also confirmed, under article 25(3)(a) of the 550 Statute as a direct perpetrator (for Incidents 1, 2, 4, 5, 7 and 8 only) under article 25(3)(b) of the Statute for soliciting or inducing the direct perpetrators to commit the offences, under article 25(3)(c) of the Statute for aiding, abetting or otherwise assisting the direct perpetrators in the commission of the offences, and also under 25(3)(d) of the

548 See paragraphs 64, 68, 69, 71, 76, 79, 84, 139, 141, 143, 145, 148, 153 above. 549 See paragraphs 204, 205, 209 above. 550 Relating respectively to P-0397, P-0516, P-0800, P-0495, P-0341, and P-0274. No: ICC-01/09-01/20 75/81 15 July 2021

Statute for contributing, in any other way, to the commission of the offences by a group of persons acting pursuant to a common purpose. 217. Pursuant to article 25(3)(a), first alternative, of the Statute, ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person [c]ommits such a crime, as an individual’. Direct perpetrators must personally carry out the material elements of the crime with the requisite intent and knowledge pursuant to article 30 of the Statute as well as any further specific 551 provision. The Chamber recalls that pursuant to article 25(3)(b) of the Statute ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person […] [o]rders, solicits or induces the commission of a crime which in fact occurs or is attempted’. The mode of liability under article 25(3)(b) of the Statute is designed essentially to capture the conduct of prompting 552 another person to commit a crime within the jurisdiction of the Court. Article 25(3)(c) of the Statute provides for individual criminal responsibility if a person, for the purpose of facilitating the commission of a crime within the jurisdiction of the Court, ‘aids, abets or otherwise assists in its commission or attempted commission, including providing the means for its commission’. 553 As held by Pre-Trial Chamber I, ‘[i]n essence, what is required for this form of responsibility is that the person provides assistance to the commission of a crime and that, in engaging in this conduct, he or she intends to facilitate the commission of the crime’. 554 The Chamber considers that the form of contribution under article 25(3)(c) of the Statute does not require the meeting 555 of any specific threshold. Article 25(3)(d) of the Statute criminalises contributing ‘in any other way’ to the commission of a crime by a group of persons acting with a common purpose. It is therefore required that: (i) the crime is committed ( i.e. realised in its objective elements) by a group of persons acting with a common purpose; and (ii) 556 the person charged provides a contribution to the commission of such a crime. To be

551 Ongwen Trial Judgment , para. 2782, n. 7264 and references cited therein. 552 Ongwen Confirmation Decision , para. 42. 553 Ongwen Confirmation Decision , para. 43. 554 Ongwen Confirmation Decision , para. 43 referring to Blé Goudé Confirmation Decision , para. 167; Bemba et al. Confirmation Decision , para. 35. 555 The Chamber follows the reasoning of Trial Chamber VII in Bemba et al. Trial Judgment , paras 93- 95. See also Al Hassan Confirmation Decision , para. 906; Bemba et al. Confirmation Decision , paras 35 et seq . 556 Ongwen Confirmation Decision , para. 44.

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satisfied that the perpetrator’s acts were encompassed by the common purpose, it will 557 also be necessary to show that the crime at hand formed part of the common purpose. A person who stands charged pursuant to article 25(3)(d) of the Statute will not incur individual criminal responsibility for those crimes which form part of the common 558 purpose but to which he or she did not contribute. 218. After reviewing the evidence put before it, it is the understanding of the Chamber, as explained above, that direct co-perpetration under article 25(3)(a) of the Statute best captures Mr Gicheru’s behaviour and responsibility for all the established incidents. However, the Chamber notes and endorses the conclusion of several pre-trial chambers as to the appropriateness, for a pre-trial chamber, to also confirm alternative modes of liability when it is satisfied that alternative legal characterisations of the same facts are 559 sustained by the evidence. Therefore, the Chamber deems it appropriate to retain, in the charges, the alternative modes of liability pursuant to article 25(3)(a) (direct 560 perpetration, in relation to incidents 1, 2, 4, 7 and 8), article 25(3)(b), 25(3)(c) and 25(3)(d) of the Statute (for all incidents), as requested by the Prosecutor, as it also finds, after having reviewed the evidence, that both the objective and subjective elements of 561 those alternative modes of liability are fulfilled.

557 Katanga Trial Judgment, para. 1630; Al Hassan Confirmation Decision , para. 941. 558 Katanga Trial Judgment, para. 1619; Al Hassan Confirmation Decision , para. 943. 559 Gbagbo Confirmation Decision , paras 227-228; Ongwen Confirmation Decision , paras 146-149. See also : Ntaganda Confirmation Decision , para. 100; Al Mahdi Confirmation Decision , para. 22; Blé Goudé Confirmation Decision , para. 133. 560 The Chamber notes that, contrary to what the Prosecution requests, it does not confirm the charges as regards Incident 5, relating to P-0495, for direct perpetration under article 25(3)(a) of the Statute. See paragraphs 124, 125, 208 above. 561 See also Chambers Practice Manual , 29 November 2019, para. 67.

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FOR THESE REASONS, THE CHAMBER HEREBY

CONFIRMS the charges against Mr Gicheru, as articulated by the Prosecutor in the DCC and to the extent that the Chamber considers them sufficiently supported by evidence, as follows and commits him for trial on these confirmed charges:

1) pursuant to article 25(3)(a) (jointly with another person or as an individual), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0397 by

(i) offering to pay to pay him a Bribe of 5,000,000 Ksh in cash instalments; (ii) and/or threatening him; and/or (iii) by actually paying him a total of 1,000,000 Ksh; in order to influence in order to influence him to withdraw as a Prosecution witness and cease cooperating with the ICC, to sign an affidavit to that effect, and/or to locate, contact and/or corruptly influence P-0516 on behalf of the Common Plan Members, committed during the period April 2013 to January 2014 and at , Kenya;

2) pursuant to article 25(3)(a) (jointly with another person or as an individual), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0516 by

offering him a Bribe of 800,000 Ksh in instalments and actually paying him a total of 500,000 Ksh to withdraw as a Prosecution witness and to sign an affidavit withdrawing his prior statement to the Prosecution, committed during the period April to May 2013 and at , Kenya;

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3) pursuant to article 25(3)(a) (jointly with another person) or 25(3)(b) (soliciting or inducing) or 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0613 by

offering to pay her a Bribe, the amount of which would be subject to negotiation, to influence her to withdraw as a Prosecution witness, committed during the period April to September 2013 and at , Kenya;

4) pursuant to article 25(3)(a) (jointly with another person or as an individual), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0800 by

offering to pay him a Bribe of between 1,500,000 and 2,500,000 Ksh in order to influence him to withdraw as a Prosecution witness, to sign an affidavit to this effect and to locate and corruptly influence other Prosecution witnesses, including P-0495 and P-0613, committed during the period May 2013 to March 2014 and at , Kenya;

5) pursuant to article 25(3)(a) (jointly with another person), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0495 by

offering to pay him a Bribe of between 1,500,000 and 2,500,000 Ksh and employment, to withdraw as a Prosecution witness in the Ruto and Sang case and corruptly influence other Prosecution witnesses, committed during September 2013 and at , Kenya;

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6) pursuant to article 25(3)(a) (jointly with another person), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0536 by

offering her a Bribe of between 1,400,000 and 1,600,000 Ksh in exchange for her withdrawal as a Prosecution witness, committed during the period May to September 2013 and at Kenya;

7) pursuant to article 25(3)(a) (jointly with another person or as an individual), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0341 by

(i) offering to pay him a Bribe of 5,000,000 Ksh and other financial benefits; (ii) actually paying him between 1,000,000 and 2,000,000 Ksh; and (iii) intimidating him, in order to influence him to refuse to become a Prosecution witness if asked to do so, to cease to attend , to sign pre-prepared or dictated affidavits recording his withdrawal from the ICC process, and/or to locate, contact and/or corruptly influencing other Prosecution witnesses, committed during the period 24 April 2013 to mid-April 2014 and at , Kenya;

8) pursuant to article 25(3)(a) (jointly with another person or as an individual), 25(3)(b) (soliciting or inducing), 25(3)(c) or 25(3)(d) of the Statute, for the offence set out in article 70(1)(c) of the Statute with respect to P-0274 by

(i) promising him at least 2,000,000 Ksh; (ii) intimidating and threatening him multiple times, including at gunpoint; and (iii) paying him 30,000 Ksh to induce him to withdraw , to record a false video stating that the ICC attempted to coach him to give evidence against Mr Ruto, to sign a blank piece of paper, and to locate,

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Judge Reine Adélaïde Sophie Alapini-Gansou

Dated this Thursday, 15 July 2021 At The Hague, The Netherlands

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