A witness told the International Criminal Court (ICC) that listeners of a morning show Joshua arap Sang presented on Kass FM radio station called in to urge others to vote for the Orange Democratic Movement (ODM) party in the lead up to the 2007 elections.
Witness 268 told the court on Wednesday the listeners also called in to discuss land issues and the need for Kalenjins to forge a common identity. Kass FM is a station that broadcasts in Kalenjin, and the show Sang hosted was called Lenee Emet. This means, “what the country is talking about,” when directly translated from Kalenjin.
Witness 268 also told the court that Kass FM had a political agenda. He gave as an example the station coining the term “no kitwek” during the 2005 referendum on a draft constitution. He said “no kitwek” came to mean no support for the draft constitution.
He said usually the same people called in to the show each day and they used pseudonyms. He also said they seemed to share the same views, and callers who had a different point of view were discouraged.
When prosecution trial lawyer Lucio Garcia questioned him further on this point, Witness 268 explained that he did not hear this himself when he listened to the show, but someone narrated to him his experience. Garcia then asked the details of what this other person told him, but the witness said he did not remember much. Garcia then proposed to furnish him with a statement he gave the prosecution before the trial, which prompted a debate between the prosecution and defense about how much hearsay evidence can be presented at trial.
The judges allowed Garcia to show Witness 268 his earlier statement to refresh his memory. They, however, also warned the prosecutor.
“Prosecutor you can proceed, but you will not be allowed to elicit hearsay to saturate the record with it,” Presiding Judge Chile Eboe-Osuji told Garcia. The rest of that hearing, which was in the late morning, went into private session. When the court resumed in the afternoon, Eboe-Osuji said that the judges felt they had heard enough hearsay testimony from Witness 268 and asked the prosecutor to move the examination-in-chief to another area.
“Just to be clear the chamber is not saying we are going to have a watertight door that locks out hearsay, but we are concerned if there is a huge amount of hearsay coming through a witness that in the end is likely not to be relied on in the verdict,” Eboe-Osuji said.
Much of the afternoon hearing was in private session as well. Before going into private session, Sang’s lawyer, Joseph Kigen-Katwa, applied to allow his client excused from court on Friday to attend the graduation of his six year-old daughter. He argued for the excusal using the decision of the Appeals Chamber that was made last Friday. Kigen-Katwa said that Sang’s daughter would not be able to understand why her father cannot attend her graduation.
Kigen-Katwa explained that the graduation had been scheduled for November 7 when the hearings had been set to be adjourned but Sang was informed on Wednesday that the graduation had been brought forward to this Friday. Senior trial lawyer Anton Steynberg opposed the application, arguing that the Appeals Chamber’s decision did not cover family occasions. Judge Eboe-Osuji said the chamber will issue a ruling tomorrow morning.