A unit of the International Criminal Court (ICC) has informed judges in the trial of Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang that there have been attempts to reveal the identity of the second prosecution witness.
This revelation by the Victims and Witnesses Unit (VWU), which is charged with providing protection to witnesses and victims where the need arises, prompted Presiding Judge Chile Eboe-Osuji to ask lawyers on Wednesday whether it was necessary to hold the hearings in private session. The witness, identified as Prosecution Witness 326, is already shielded from the public while testifying in open court. There is a screen blocking those in public galley from seeing Witness 326 and his voice is distorted. In addition, his face is pixelated in the court’s video stream.
Even though the judges made no ruling on Wednesday on the matter, most of the day’s hearing was held in private session because Witness 326 was asked questions that could reveal his identity to the public. The prosecution concluded its questioning of the witness early afternoon, and then Ruto’s lawyer, Karim Khan, began questioning him late afternoon.
In the morning when the question of whether to hold in private session the entire hearing of the witness arose, Senior Trial Lawyer Anton Steynberg said that the prosecution was aware that attempts had been made to reveal the witness’s identity. Steynberg argued that the court should give the prosecution more latitude to determine whether particular testimony of a witness should be in open court or in private session. He said this would avoid slip ups when the hearings moved frequently between open and private sessions that could lead to identifying information being inadvertently revealed.
The lawyers for Ruto and Sang stated that no one in their legal teams or their clients was involved in any attempts to reveal the identity of protected witnesses. They said that they abided by their obligations as officers of the court.
The defense lawyer for Sang, Joseph Kigen-Katwa, and Khan, argued that holding hearings for any witness exclusively in private session would deny their clients their right to have their trial in public. They also said that an open hearing would allow others to come forward who may have information that could aide their clients’ defense. Khan said that the court should investigate whoever was trying to reveal the identities of protected witnesses and prosecute them.
“In reality, the defense should not be punished for the breach of a third party,” Khan said.
The other issue that came up in open session was whether the defense was ready to cross-examine the second prosecution witness and the other upcoming witnesses. Kigen-Katwa said that he needed more time to prepare to cross-examine the witness since he had mentioned his client, Sang, quite extensively. Khan said that his team needed more time to investigate the next three witnesses to properly prepare for cross-examination.
Presiding Judge Eboe-Osuji asked the different teams to discuss further among themselves how they would wish to proceed before asking the judges to issue orders on the matter.
As the trial progressed Kenya’s Foreign Affairs Secretary, Amina Mohammed, held a news conference in the Kenyan capital, Nairobi, to talk about the upcoming summit of African Union leaders that is focused solely on Africa’s relationship with the ICC. When asked whether President Uhuru Muigai Kenyatta would attend his trial, which is scheduled to start next month, Mohammed said that there was no question about whether Kenyatta would attend his trial. She, however, did not categorically state that Kenyatta would attend his trial when it opens on November 12. She also made a point of stating that nowhere in the world has a sitting president been taken to court while still in office. Sub-sections three and four of Article 143 of the Constitution of Kenya do bring into question whether a sitting Kenyan president is immune from prosecution in a case that was initiated before the president took office.