THE WITHDRAWAL OF WITNESSES NOT GOOD FOR THE ACCUSED PERSONS. The recent withdrawal of the key witness who were expected to give evidence in the Kiambaa church massacre in Eldoret during the post election violence in 2007/2008 is not only a blow to the ongoing ICC cases by prosecutor Fatao Bensouda but is also a point of disadvantage to the accused persons who are vigorously expected to defend their cases. While the prosecutor may get alternative replacement for other witnesses, this withdrawal is likely to set in suspicion as to why this has to happen at the time of commencement of the trial. The questions which the judges will be grappling with in their minds is whether the accused persons had a hand in this drama- to give the impression that the violence at the church were spontaneous hence, was as an act of hooliganism as opposed to organized plan to have the Kikuyu community evicted from Eldoret, the home tuff of the Kalenjin community. If this is the way things are at the ICC, then the prosecutor is likely to introduce the genesis of the election violence in Kenya especially in the Rift valley since 1991 to 2013 with the aim of finding out exactly the cause of these violence and whether they always occur spontaneously or they are organized each time there is an election. Since 1991, election violence in most parts of Kenya has always occurred just before election takes place mainly during the voter registration exercise, nomination and party campaigns. The most logical question here which the prosecutor will be asking is, why do people fight or turn against each other during an election period in Kenya? Is the cause of these violence only about elections or there is something more to it? Why do people develop uncertainty and lose hope during an election period? What causes animosity in amongst different ethnic groups in Kenya during an election period? From the above observations and findings the prosecution will be guided to establish the facts of the case e.g. the fact that the people who were killed in the church in Kiambaa were the Kikuyu, the Luo, the Luhya, the Kisii, the Kamba or the Kalenjins e.t.c. and that they were running away from their assailants for quite sometime before they landed in Kiambaa church on that fateful day. Since the victims as well as the suspects of this violence are present in court, the prosecutor may wish to convince the court that a crime was committed and that the accused persons present in court are probably the ones who organized for the killings. If this is the way the prosecution has arranged itself, there won’t be Judgment of acquittal in the first instance as a result of the withdrawals of the witnesses the way majority of the people are suggesting. The point I am trying to make is that, witnesses are only part of the evidence amongst other forms of evidences which the judges are expected to use in order to arrive at the truth. Therefore, it is not a must that judges have to draw their inferences from the witnesses so as to prove the existence of certain facts. The prosecutor is going to provide the facts based on the victims of the violence present in court and the suspects who probably are the ones who organized for the killings. With such statement, the prosecutor may move to produce physical evidence, documentary evidence, audio and visual evidence or written information to prove that indeed there was an organized/planned crime. In this way, the prosecutor will be cleverly shifting the burden of proof to the accused persons to prove that they actually did not participate in the Kiambaa church killings during the 2007/2008 post election violence. If indeed the witnesses who are withdrawing were threatened, neglected, coerced, cajoled or coached, it would greatly help the accused persons, if the witnesses shouldn’t have recanted their testimonies but soldiered on to tell the Judges the truth. Christopher Amasava Former ODM Aspirant Vihiga Constituency Email:christopheramasava@yahoo 0725909011 18.09.2013
Posted on: Wed, 18 Sep 2013 12:10:52 +0000
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