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 SIMON KIPKOLUM ROTICH FOR THE PETITIONER I, Simon Kipkolum Rotich, of Post Office Box Number 25, Turbo and a resident of Kapteba Location, Turbo Division of Uasin Gishu County in the Republic of Kenya do hereby make oath and state as follows. 1. THAT I am a Kenyan citizen (ID No. 8575886) I was born on 1 st January, 1965. I became a Prosecution Witness in the ICC cases on 18 th July, 2010. I agreed to become a Prosecution Witness in order to testify truthfully about what I knew concerning the Post Election Violence (PEV) of late 2007 and January, 2008 and because this was a sensitive and risky matter
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the representatives of the Office of the Prosecutor (OTP) assured me that my family will be safe and our needs and comfort will be guaranteed. 2. THAT in early 2008 I recorded a statement with the Kenya National Commission on Human Rights (KNCHR) in relation to the PEV. I later learnt that the said statement was produced before the Commission of Inquiry into Post Election Violence (CIPEV) which was chaired by Hon. Justice Philip Waki. 3. THAT in early 2010 officials of the KNCHR led by Mr. Hassan Omar contacted me and requested me to testify before the ICC on the basis of the statement I had recorded with them. I agreed. Thereafter Mr. Hassan Omar gave me a telephone which I was to use when communicating with him and other officials of KNCHR he had introduced to me. Around February 2010 I entered the Witness Prosecution Programme run by the KNCHR which rented for me an apartment at Kilimani, Nairobi. 4. THAT in July, 2010 I travelled to Dar-es-Salaam by bus accompanied by my sons Morgan Kolum and Quinton Kolum. The travelling was paid for and facilitated by the KNCHR. Upon arrival in Dar-es-Salaam we were booked in Lamada Hotel. 5. THAT I met an ICC official known as Kebba Khan at Lamada Hotel on 8 th July, 2010 when I officially became a protected witness. After living in the said hotel for over one month in the ICC rented an apartment in Dar-esSalaam for me and my two sons. 6. THAT whereas I had been promised by officials of the KNCHR that my sons will be admitted to good schools in Tanzania the ICC did not honour this agreement during our six months stay in Dar-es-Salaam. I told the representatives of ICC that I wanted to withdraw as a witness on account of their failure to admit my sons to school but they told me that they will be admitted to good schools in Europe. 7. THAT on 13th January, 2011 my sons and I were flown by the ICC to the Netherlands where we arrived the following day. 8. THAT contrary to the promise of ICC officials that my sons would be admitted to good schools in Europe, by April, 2011 this had not happened. After I raised this issue with ICC officials, they made quick arrangements to get them admission to Dutch School despite the fact that we had agreed that they would be admitted to an English school with British Education System. My children remained in the Dutch School until July 2011 when I refused to co-operate with the ICC as detailed below. My children were not in school between July 2011 and September 2012. 9. THAT on 6th June, 2011 I met two ICC officials known as Alex Sefncross and Emma Fernandes alongside three (3) other witnesses including Samuel Kimeli Kosgei. The purpose of the meeting was to be coached on
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how to be credible or convincing witnesses and to record our statements afresh as suggested by them. The facts and information that they wanted to be included in my statement concerned matters that were either false or I did not know about. Those ICC officials came with pre-prepared statements for each of us which we were supposed to read as they recorded us on video. 10. THAT I objected to recording of the statements prepared for me because I said it was wrong and illegal in Kenya to record a false statement. Upon my refusal to record the said statement, the following day (7th June, 2011) the two officials returned with Ms. Cynthia Tai who was introduced to me as a lawyer working for the OTP. Ms. Cynthia Tai told me that I had to co-operate with Alex and Emma and do what they told me to do otherwise I will be in a lot of trouble. She said my family and I would be evicted from the house ICC had rented for us and I would not be given money to live on and my medication would not be paid for. Upon reflection I decided to co-operate with Alex and Emma to avoid further hardship to my sons and I. Consequently I read a statement whilst being recorded on video which I knew was mostly false and exaggerated. After I finished to record -the statement Ms. Cynthia Tai gave me Three Thousand Euro (E 3000) and warned me that henceforth it was mandatory for me to co-operate fully with the ICC. 11. THAT after my sons were discontinued from the Dutch School in July, 2011 I would spend all days with them loitering around town. I was extremely distressed by this. I made all efforts to contact either the OTP or the ICC Protection Programme better known as ICCPP officials. 12. THAT on 11th November, 2011 two officials from the ICCPP one known as Ben Lamkadem visited me in our house. He found me in the kitchen preparing food using olive oil. The said Ben Lamkadem said he had come to serve me with a warning letter concerning my alleged breach of ICCPP Rules. He said that was the final warning. I requested him to wait from me in the sitting room as I was about to finish cooking. He answered back as follows.Do away with those foolish things. I have a lot do. Then he violently pulled my hand that was holding the handle of the cooking pot. As a result the cooking oil splashed onto his hands burning him. He screamed loudly in pain. His colleague ran from the sitting room towards us. He tried to hit me but I shielded myself by blocking his hand. I also got burnt by the hot oil but only slightly because I was wearing a long sleeved shirt and jacket. 13. THAT the two ICCPP official later called the police who arrested me. I was charged with the offence called Premeditated Violent Attack and I was locked up in a pre-detention Facility which is the equivalent of remand prison in Kenya. I was thus separated from my sons.

14. THAT I remained in pre-detention facility throughout my trial. On 16 th May, 2012 judgement was delivered and I was jailed for one year and taken to Detention Facility. I was finally released on 5th November, 2012. 15. THAT I am very aggrieved by my arrest, prosecution and detention for a crime that I never committed. I was subjected to an unfair trial whose language and procedures were all alien to me. I earnestly believe that Ben Lamkadem was the aggressor and I was the victim but I am the one who ended up in prison. I believe that the whole arrest, detention and trial experience process was a gross miscarriage of justice and it shocked me that this happened in Europe where I had been made to believe that justice is fair and transparent. 16. THAT on account of the suffering I was experiencing whilst at the preDetention facility by a letter dated 16th April, 2012 addressed to Ms. Sylvana Arbia, the Registrar of ICC, I withdrew as a Prosecution Witness. Annexed hereto marked SKR1 is a true copy of the said letter dated 16th April, 2012. 17. THAT during my detention the Youth Care Agency which took custody of my children when I was arrested made an application dated 22nd December, 2011 to The Hague District Court, Juvenile Court, seeking appointment of a special guardian for my sons Morgan Kolum and Quinton Kolum. The said application is a testament on the suffering my sons experienced after my detention. At page 4 9 of the Application Quinton and Morgan experienced the following:On 9th December 2011, the fathers lawyer called. She had spoken with the father about the alcohol abuse of the father of the family in Almere. According to the father, this man never drinks at home because he is ashamed of his drinking. The care for Morgan and possibly Quinton would only be provided by the partner. The lawyer stated that she would prefer to see the boys stay together. She had not spoken with the father about the domestic violence in the family in Almere. The crisis facility called the Youth Care Agency. Quinton did not want to stay any longer. This had been going on for quite some time. In the evening the situation had escalated. Quinton had broken the windows of the office with an iron object and had destroyed his room and other household effects. The team leader indicated that Quinton was no longer welcome in Cardea. The situation was not considered to be safe for the employees. Placement of Quinton in other sections of Cardea was not an option either. Eventually the police were involved. Quinton challenged the group leaders to call the police. Quinton wanted to go to Kenya or to Amsterdam. His father had told him that someone would be
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waiting there for him with money. For a more detailed report on the incident from the Cardea Supervisory Team we refer to Exhibit 1. As a result of the incident, in joint consultation between the police, Cardea and the Youth Care Agency it was decided to call Morgan in Almere. If Morgan could be reached, Cardea would have to provide shelter for one more night. Around 12.30 a.m. it finally became clear that Quinton could be brought to Almere by taxi. On or around 13th December2011, Morgan was expelled from the family in Almere because he had slept with the mother of the family. The AMK Flevoland (Child Abuse Counseling and Reporting Centre) reported this after a report from the police. Currently Morgan is staying with a different family in Amsterdam. This family has also been placed in the witness protection programme of the ICC. The ICC has indicated that Morgan should not stay longer with this family because this is not a good place either. On Saturday 17th December 2011, the police in Leiden called the Youth Care Agency. Quinton and Brian (11 years old) were in front of the house in Leiden where he used to live until only recently. Brian is the son of the family in Almere where Quinton had stayed. Quinton could not enter the house because the locks had been changed by the ICC. The house was taken from the father because of the aggravated assault on an ICC employee. The police took Quinton and Brian to the police station. It was a very distressing situation. Quinton and Brian told the police that the father from the family in Almere had an alcohol problem and caused grievous bodily harm to the mother and the children when he was drunk. Brian had many scars in his face and on his legs. The Flevoland Youth Agency took care of Brian. For the time being, Brian and the other children from the family were taken from the home and were placed under supervision on 19th December, 2011. The police indicated that the ICC does not feel responsible for the children. The ICC states that they only brought the father to the Netherlands and not the children. Quinton told the police that he does not want to return to Almere or the emergency facility. He could not stay with the police either. Finally Quinton was put up for the night at a crisis shelter in Zoetermeer. On 19th December 2011, Quinton was finally placed with a crisis relief facility in another region. After a lot of work Cardea finally gave him an emergency bed on Monday night and Tuesday night. He is difficult to place because of his behavior. The employee from the Youth Care Agency who is specialized in handling crisis situations collected Quinton in the morning at 9 a.m. from the crisis relief facility. Quinton spent the day with the Youth Care Agency. He was very forceful and wanted to run away. He did not want to stay with the Youth Care Agency. Since September, 2011, he has not
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been to school and in his present situation (no permanent residence, no parent with the authority to register him at a new school) he cannot go to school. At pages 5 6 of the Application the position of the ICC on my sons is set out as follows:The Youth Care Agency has frequently sought contact with the ICC about the situation that had arisen and Quintons placement. In the beginning, the Youth Care Agency had asked the ICC what the detention of the father meant for the status of the family in the witness protection programme. The ICC stated that they believed that the father and the children would have to return to Kenya when the father was released. The witness protection programme will not be continued for the father. The father does not have to testify anymore. The father is now in detention for a crime committed against an employee of the ICC and the father has breached various agreements made within the witness protection programme. Research and further actions by the ICC are being carried out very slowly and this is why for Quinton (and for the Youth Care Agency) there is unrest and uncertainty about his future. Quinton becomes more and more agitated and this resulted finally in the serious incident at the crisis group. With an iron bar Quinton trashed his room and created an unsafe environment for the group leaders. As a result of this incident Quinton was no longer allowed to stay at the crisis relief facility. The uncertainty is still having an effect on him. There has been frequent contact with the ICC about a return to Kenya. The ICC states that they can investigate whether the boys can return to their mothers in Kenya. The ICC is in contact with the mothers. They can also provide someone to travel with the boys to Kenya. They can also arrange for the required travel documents with the Kenyan embassy when the decision for the boys to return has been made. The ICC has indicated that they do need the order to start the return procedure. This procedure will take about two weeks once the order has been given. ICC states that the order has to come from a party with authority over Morgan and Quinton. The ICC will put this on paper and send it to the Youth Care Agency. Even though the father initially agreed to the return of the boys to Kenya, the ICC informed the Youth Care Agency that they heard from the fathers lawyer that he no longer wanted them to return. It seems that in the mean time the father has applied for asylum in the Netherlands. His visa under the witness protection programme will expire when he is released in February. The IND (Immigration and Naturalization Service) will be involved in the asylum application of the father. However, the father has no house or
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income to provide for himself or the boys. The ICC informed the Youth Care Agency that there is no chance that the application of the father will be awarded. The father will stay in detention for a longer period of time and as a result the boys are not receiving basic care, a safe home, education or authority. This situation is expected to continue for a long period. Because of the separation of the boys, the fact that they cannot be placed and the hopeless nature of the present situation it is expected that these boys, who have been burdened so much already, will display increasingly problematic behavior. This has become very clear from Quintons behavior. However, the ICC can only start the return process on the basis of a request from the father or some authorized party. Annexed hereto marked SMK2 is a true copy of the said application dated 22nd December, 2011. 18. THAT immediately after I was released from detention I was terminated as a protected witness under the ICCPP as the ICC had indicated in the application aforementioned. This was done on December, 2012. 19. THAT whilst in detention I was denied medication for the HIV/Aids condition. Furthermore the conditions in detention were not humane at all and I suffered acute psychological torture, which was all the worse because I was in a foreign county. 20. THAT after I was released from prison I was informed by ICC officials that a certain court in the Netherlands had ordered that I should pay Ben Lamkaden damages in the sum of Four Thousand Euros (4000) and if I failed to pay them I would have to be jailed for one more month. Thereafter I met Ms. Cynthia Tai who informed me that if I rescinded my decision to withdraw as a witness, the OTP will pay for me the 4000 Euros to avoid serving jail term for one more month. I declined the offer of OTP to pay the damages for me. Accordingly, on 17 th November, 2012 I was re-arrested and sent back to the Detention Centre where I stayed until 5 th January, 2013 when I was released. 21. THAT whilst in detention I had applied for asylum in the Netherlands and I was informed that the issue would be considered. In the meantime I was given Refugee Status and given an Identity Card a true copy of which is annexed hereto and marked SKR3. 22. THAT my application for asylum was finally rejected and the Dutch Government issued a travel ban against me. 23. THAT upon my release from prison I was subjected to extreme desperation. My sons and I had no house or money to cater for our
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needs. ICC knew about all this and constantly implored me to reconsider my withdrawal as a witness. Finally I bowed to the pressure of the ICC and I was forced to choose between telling lies and misery for my family. 24. THAT in April, 2013 I wrote a letter to the Registrar of the ICC Herman Von Hebel in which I withdrew once again as a Witness in Kenya Case 1 Chamber (V)a and gave the following reasons for my decision:I, the above named person, earlier on having volunteered as a witness before the International Criminal Court in the Hague the Netherlands am today withdrawing from being one of the witnesses. The main reason of my withdrawal is dissatisfaction from the VWO and the office of the Prosecutor, staff behavior though it might be that they are acting within the Rome Statute containing the ICC. The most hurting part is giving me a lot of expectations while I was still in my Country Kenya and partly the neighbour country. I was brought to the Netherlands without being consulted even having been open that I wasnt happy with Western countries having carefully considered my expectations from the ICC staff which were turned down when I arrived in the Netherlands, it has been very difficult to persuade my conscience to even be taken as the ICC witness when having a lot of mental disturbance. According to my conscience I was to testify for the benefit of Kenya and Kenyans and the third class citizens from all over the world and not ICC and its staff integrity, though the later is also important but it cannot be clarified as a witness duty it is the duty of the courts staff. May be the Rome Statute containing ICC permits the courts staff to treat the Courts witnesses in a slavery manner. Slaves are even better for there are organizations fighting for their rights unlike ICC witness especially me. The following are things which persuaded me to withdraw as a witness. (1) The education curriculum enforced to my sons Netherlands which is not Kenyan system or British. in the

(2) In the Netherlands everybody is entitled to better health when my family have no General Practioner like other people in the Netherlands. (3) No updates of my CD4 counts and viral load from the HIV/AIDS specialist but instead updating strangers. (4) The future of my sons and me is blurred. (5) Undermining of my culture by being brought to a country with strange cultures.
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(6) Being kept at an environment which is not mind relaxing. (7) My name appeared in the Kenyan Social Media and no step was taken by the ICC and I do believe this was cleverly done by the (ICC) staff to cement me in this psychologically torturing programme of you call it Witness Protection Programme. (8) Being kept in a social place (hotel) with my under 18 years old sons is totally lowering my integrity as a parent. (9) In my first contact with the ICC officials being represented by a lawyer not to be requested. But I was shocked to hear a negative decision on this issue by the chambers causing more confusion from my side, for I could not understand how the chambers involvement came in as regards this matter of a lawyer for me. Good luck in all your endeavours. Annexed hereto marked SKR4 is a true copy of the said letter I wrote in April, 2013. 25. THAT the said letter I wrote in April, 2013 was not acted upon by OTP who continued to regard me as a Prosecution Witness. I decided to play along because by then I knew ICC wanted to relocate me to another County in Africa. Thus on 6th June, 2013 the representatives of ICC and I signed an Agreement and Consent to my relocation in Tanzania and education of my children in Uganda. Annexed hereto marked SKR5 is a true copy of the said Agreement dated 6th June, 2013. 26. THAT by a letter dated 25 th June, 2013 addressed to Mr. Herman Von Hebel, ICCs Registrar, I requested for ICCs assistance to return to East Africa. Annexed hereto marked SKR6 is a true copy of the said letter dated 25th June, 2013. 27. THAT in view of the foregoing on 15th July, 2013 my sons and I flew back to Nairobi and we were booked by the ICC at Parkside Hotel in Nairobi as we awaited our travel documents to Tanzania. Indeed, on 16 th July, 2013 the Government of Kenya issued a Temporary Permit to the ICC for my use. Annexed hereto marked SKR7 is a true copy of the said Temporary Permit dated 16th July, 2013. 28. THAT on 19th July, 2013 I informed the ICC official escorting me that I wanted nothing more to do with the ICC. Therefore I left the Hotel with my sons to his annoyance and went back home. 29. THAT in early October, 2013 after reading in the newspapers the tribulations of the Petitioner herein with the ICC, I accompanied Samuel
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Kimeli Kosgei to the office of Mr. Kibe Mungai, Advocate where I met Mr. Barasa and I agreed to swear an affidavit in support of his prayers in this case to be tried in Kenya. 30. THAT I wish to reiterate that the experience and suffering my sons and I experienced in The Netherlands have convinced me beyond a shadow of doubt that there can be no justice for any African before any Court in Europe. I therefore urge this Honourable Court not to issue a warrant of arrest against Mr. Barasa or otherwise allow his surrender to the ICC. I am convinced that Mr. Barasa will definitely be subjected to oppression and injustice especially because ICC officials are clearly annoyed with him. 31. THAT I further believe that as a sovereign country there is no basis whatsoever for the Republic of Kenya to surrender any of its citizens for trial in Europe. I am completely convinced now that Truth and Justice are not part of the ICC Justice System which I consider it to be a terrible misfortune to our country. I deeply regret that I ever agreed to serve as a witness of the OTP which decision has ruined my family and corrupted justice in relation to the PEV. 32. THAT I have therefore sworn this affidavit to support Mr. Barasas Petition and his objection to arrest and surrender for trial before the ICC in The Hague. 33. 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 ) ) )

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