REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL PETITION NO.

488 OF 2013

IN THE MATTER OF ARTICLES 1, 2, 3, 10, 20, 21, 22, 23, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 28, 29, 35, 47 AND 50 OF THE CONSTITUTION AND IN THE MATTER OF THE INTERNATIONAL CRIMES ACT, 2008 IN RESPECT OF THE REQUEST FOR ARREST AND SURRENDER OF THE PETITIONER TO THE INTERNATIONAL CRIMINAL COURT PURSUANT TO THE ROME STATUTUE OF THE INTERNATIONAL CRIMINAL COURT AND IN THE MATTER OF THE ENFORCEMENT OF WARRANT OF ARREST ISSUED BY THE INTERNATIONAL CRIMINAL COURT AGAINST THE PETITIONER ON 2ND AUGUST, 2013 BETWEEN WALTER O. BARASA AND THE CABINET SECRETARY MINISTRY OF INTERIOR AND NATIONAL CO-ORDINATION HON. ATTORNEY GENERAL THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT THE INSPECTOR GENERAL OF POLICE RESPONDENT 1ST RESPONDENT 2ND RESPONDENT 3RD 4TH PETITIONER

SUPPLEMENTARY AFFIDAVIT OF SAMUEL KIMELI KOSGEI FOR THE PETITIONER I, Samuel Kimeli Kosgei, of Post Office Box Number 350, Turbo and a resident of Nandi County in the Republic of Kenya do hereby make oath and state as follows. 1. THAT I am a Kenyan citizen (ID No. 12641348. I was born on 12 th April, 1972. I am a resident of Kaplemor village, Kipkarren Division, Nandi North District of Nandi County. 2. THAT I agreed to become a prosecution witness in the case against Hon. Henry Kosgei, Hon. William Ruto and Mr. Joshua arap Sang before the
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International Criminal Court sometime in the year 2009. Upon agreeing to be a Prosecution Witness in the said ICC Case, I left Eldoret town and went to stay in Nairobi under the protection of the Kenya National Commission on Human Rights (KNCHR) and the Independent Medical Legal Unit (IMLU). 3. THAT in January, 2011 my family and I were flown to the Netherlands where we stayed in several locations. During my stay in Netherlands my National Identity Card, Passport, Photographs and all other identification documents belonging to me and my family were confiscated by ICC officials apparently to restrict or control our movements and avoid contact with other persons. 4. THAT whilst a witness in the Netherlands I received periodic payments from the Office of the Prosecutor (OTP) whenever I attended any meeting on matters touching on evidence in the first ICC Kenyan Case. The said payments were in addition to what I received from the Victims and Witnesses Unit (VWU). 5. THAT prior to the confirmation hearing the OTP organized several meetings where I and other witnesses were called into various hotel venues and were instructed to either add, vary or subtract some of the contents of our earlier statements in order to harmonize them and ensure that they corroborate each others testimonies. These meetings were held among other dates on 6th, 7th and 8th June, 2011 at Holiday Inn Hotel in Laiden and the proceedings were conducted and coordinated by two people I knew as Alex and Emma. There were other meetings on 27 th July, 2011 at the Van Der, Valk Ecrusief Hotel and a whole day meeting on 29 th August, 2011 at the Mercure Hotel in Amsterdam. I am aware that the Witnesses who attended those meetings are the ones who made statements that were subsequently used by the OTP in Court proceedings before the Pre-trial Chamber in the ICC Case facing Hon. Henry Kosgei, Hon. William Ruto and Mr. Joshua arap Sang. 6. THAT I declined the request of the OTP to change my Statements and explained to them that I considered it unlawful and morally objectionable to give false testimony but they were unwilling to let my testimony stand as I had previously recorded it. I threatened to withdraw as a Witness if they continued to pressurize me to alter my Statement to include any matters that were either false or strange to me. Subsequently, I was charged in Court with the offences of mistreating my children. The Court found that I was irresponsible and ordered that my children be taken away by the Child Care Services, Netherlands. 7. THAT whenever I demanded my children from the Child Care Services they would tell me that I consult the ICC. Therefore, I requested the OTP and Victims and Witnesses Unit of the ICC to help me get back my Children. A lawyer making with the OTP known as Cynthia Tai called to tell me that if I accepted to sign the altered statement I had previously refused to sign, ICC would help me to get back my children. However, I
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maintained my refusal to sign the altered statement. I have documents to attest this information but they are in Dutch language if the Court requires them I pledge to offer copies of the same after they are translated into English. 8. THAT after a lot of pull and push over the suffering my family and I were undergoing in the Netherlands, we finally left Netherlands for Kenya on 26th October, 2012. 9. THAT in the backdrop of the foregoing and following soul searching in February, 2013 I decided to withdraw as a Prosecution Witness in the first Kenyan Case before the ICC. In this regard, I swore on affidavit on 7 th February, 2013 to confirm my withdrawal and reasons therefor. Annexed hereto marked SMK1 is a true copy of the said Affidavit I swore on 7 th February, 2013. 10. THAT by a letter dated 19th February, 2013 addressed to my advocates, Ms. Gicheru & Company, the OTP through Cynthia Tai, Trial Attorney, acknowledge receipt of my affidavit aforementioned. Annexed hereto marked SMK2 is a true copy of the said letter of OTP dated 22 nd February, 2013. 11. THAT despite my withdrawal as a Prosecution Witness the OTP did not stop to persuade me to reconsider my position and remain a witness. As example, just before the General Elections held on 4 th March, 2013 I was called thrice by officers from the OTP who promised to buy me an apartment in South Africa or one acre of land plus a house on Mbezi Beach in Tanzania. I declined the said offer. 12. THAT on or about 15th March, 2013 at 10.30 a.m. I received a call from Cynthia Tai urging me to accept the offer from the OTP and agree to testify on the basis of the Statement I had previously declined to sign. 13. THAT on or about 28th February, 2013 I met two officers from the OTP who introduced themselves to me as Mr. Paul from Lebanon and Mr. Silverstan from Burkina Faso at Kivi Hotel and Hebron Hotel in Nairobi. They bought me alcoholic drinks as they tried to convince me to recant the contents of the aforementioned affidavit I swore on 7 th February, 2013 and to continue being a witness in the first ICC Kenyan Case. 14. THAT thereafter, I informed my advocates aforementioned about the calls and contacts that ICC officials were trying to make with my wife and I. Consequently, my father, wife and I decided to swear affidavits to reconfirm my categorical position on withdrawal as a witness and to protest about the efforts of ICC officials to coerce and/or induce me to change my position. The said three affidavits were forwarded to the ICC through my advocates letter dated 18th March, 2013. Annexed hereto marked SMK3 is a bundle containing true copies of my advocates letter dated
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18th March, 2013 and the Affidavits sworn on 16 th March, 2013 by my wife Stella Kosgei, my father William Kipkosgei Cheburet and I. 15. THAT by a letter dated 19th March, 2013 addressed to my advocate Mr. Paul Gicheru the OTP acknowledged receipt of the affidavits aforementioned. Further, in the said letter the OTP questioned the circumstances in which our affidavits were obtained and consequently Ms. Cynthia Tai requested to meet Mr. Gicheru, Advocate in Nairobi on 20 th 22nd March, 2013, if possible. Annexed hereto marked SMK4 is a true copy of the said letter dated 19th March, 2013. 16. THAT by a letter dated 21st March, 2013 my Advocate Mr. Gicheru informed the OTP that under the laws of Kenya the Advocate Client Privilege prevented him from meeting the representatives of the OTP. In response, by the OTPs letter dated 26th March, 2013, Ms. Cynthia Tai disagreed with the position of Advocate-Client Privilege taken by my advocates. The said letter added:In defence of and to protect the affiant, the OTP will be pursuing all appropriate avenues, with the assistance of other States, to investigate the possibility that one or more persons are violating Article 70 of the Rome Statute in connection with the affiant, to charge any persons found to be participating in obstruction of justice, and to seek international warrants for their arrest for ultimate prosecution. Annexed hereto marked SMK5 is a true copy of the OTPs letter dated 26th March, 2013. 17. THAT despite my unequivocal decision to withdrawal as a witness as attested by the affidavits aforementioned, the OTP did not remove my name from the list of its witnesses and continued to regard me as a Prosecution Witness. Consequently, through a Petition I signed on 11 th May, 2013 addressed to the Judges of the Trial Chamber Five, I informed them that I had withdrawn as a Witness and explained the reasons for my decision including the following:I have considered the issue of the courts standing vis--vis the conduct of the prosecution on matters relating to the Kenyan cases. I have a lot of respect for this chamber but I am afraid that the above events relating to me may bring the standing of the Court into bad light unless the matters are fully investigated. I am personally aware that my alleged statements were not as a result of my investigation. The office of the prosecutor instead of carrying out investigations looked for and used individuals to procure witnesses, present them to officers from the office of the prosecutor or to investigators who had a pre-determined evidential position on the matters they were investigating. The investigators then coached, coerced, induced, changed and tailored evidence to fit
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particular circumstances in order to secure a confirmation of the charges and secure a probable conviction at the end of the trial. That explains why witnesses in the same case were invited and were all present together in one Hotel Venue to review the case as I have stated above, that also explains why I was induced through intoxication first before an interrogation was carried out and that is why the prosecutors office is so desperately looking for me to testify in spite of my clear position on this matter. Your Honours, I am ready to address the chamber via video link from Kenya and clarify any of the above and other issues. A video link from Kenya because I fear for my life and security borne out of the above past events particularly the events which occurred since after I withdrew as a witness from this case. Annexed hereto marked SMK6 is a true cop of a Witness Petition dated 11th May, 2013 addressed to the Judges of the Trial Chamber Five. 18. THAT in early October, 2013 I heard on television and thereafter read newspapers reports that the ICC had issued a warrant of arrest against the Petitioner on allegations that he had obstructed the course of justice by interfering with the OTPs witnesses in the first Kenyan Case. I also learnt that Mr. Kibe Mungai Advocate was acting for Mr. Walter Barasa. Given that I am one of the Prosecution Witnesses and considering the contents of the OTPs letter dated 26th March, 2013 I thought that it is prudent that I get in touch with Mr. Barasas advocate which I subsequently did in the company of Simon Kipkolum Rotich who had also withdrawn as a witness. 19. THAT I subsequently met the Petitioner in the offices of Mr. Kibe Mungai, Advocate and upon narrating to him my experience whilst a prosecution witness he requested me to swear an affidavit on his behalf. Specifically, I learnt of the profound fears of Mr. Barasa in the event of being tried before the ICC in The Hague. In the circumstances of this matter I earnestly believe that it would be prejudicial, oppressive and unjust to try Mr. Barasa in The Hague. I believe that the OTP has and will engage in all illegal tactics and unfair procedures to secure the conviction and imprisonment of Mr. Barasa. This conclusion is borne of the terrible suffering my family and I were subjected to b the OTP in the Netherlands merely because I could not sign a statement bearing false testimony. I therefore believe that a suspect such as Mr. Barasa who appears to have provoked the wrath of the OTP will be subjected to untold suffering if this Honourable Court were to authorize his arrest and/or surrender to the ICC. 20. THAT I have therefore sworn this affidavit to support Mr. Barasas objection to arrest and surrender for trial before the ICC in The Hague.

21. THAT what is deponed to herein above is true to the best of my knowledge save what is deponed to on information and belief sources whereof have been stated. Sworn by the said Samuel Kimeli Kosgei At Nairobi this BEFORE ME day of ) 2013 ) ) ) ) ) DEPONENT ) ) )

COMMISSIONER FOR OATHS DRAWN & FILED BY: KINOTI & KIBE COMPANY ADVOCATES QUEENSWAY HOUSE FIFTH FLOOR KAUNDA STREET P.O. BOX 29871-00202 NAIROBI