A request by the DPP to have witnesses in the Anglo-leasing case testify through video-link has been vehemently opposed with defence lawyers stating the application borders on perjury.
The defence is opposing video conferencing on grounds that it can only apply under “special circumstances” and that the CJ must give it a nod through a gazette notice.
Through senior counsel Ahmednasir Abullahi , the defence told a trial court in Nairobi that the supportive documentation annexed in the application were a “perjury” because what the prosecution says is divergent from the affidavits sworn by the very witnesses.
“While the DPP insists that the foreign witnesses are too busy to come to Kenya, the witnesses in their statements claim that they were adviced by their lawyers not to come to Kenya,” Ahmednasir said.
The defence is opposed to video conferencing saying it can only be used under special circumstances for protected witnesses.
“The Chief Justice has to gazette regulations for video conferencing which he has not,” Ahmednasir submitted.
The lawyer said supporting affidavits filed by the DPP were marred with inconsistencies and that the statements indicate that the witnesses will not come to Kenya unless their own advocates from their countries approve their coming.
Jurisdiction to determine
Ahmednassir added that the magistrate’s court does not have the jurisdiction to determine the DPP’s application to have the witnesses testify thorough video-link.
“The trial court has no jurisdiction to give regulations to govern on video conferencing since Section 63(A) 2 of the Evidence Act mandates this duty to the CJ, ” the lawyer submitted.
It would also be unfair that the witnesses fail to come to Kenya after tax payers money was used in investigations, the lawyer added.
Trial magistrate Martha Mutuku was told that the prosecution lacks compelling reasons for her to grant the request as it had no legal basis.
The court was told that there was no extremity in the case to resort to video link testimony.
Defence said the DPP was yet to disclose the number of witnesses he intends to call through the said video-link.
The DPP filed his application through prosecutor Nicholas Mutuku who said the witnesses he intends to call reside in the UK.
He said the prosecution can only rely on their goodwill in the absence of a legal framework to compel witnesses outside its jurisdiction.
“Court and investigative agencies have no coercive privileges against witnesses outside Kenya,” the prosecutor said.
A ruling will be made on June 20 2017.
Two key witness G. N Gicheru and former anti-corruption Czar John Githongo who is said to be the whistle-blower are expected in court on June 20 2017.