The International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang has been adjourned until next month after the prosecution withdrew a witness who was scheduled to testify this week.
On Friday, Presiding Judge Chile Eboe-Osuji said the trial will resume on June 16 and run until July 16.
“But the chamber expresses very serious concern and dissatisfaction that we only had two days of testimony this session, a session that was scheduled to last for four weeks hearing witnesses,” Judge Eboe-Osuji said, reading the ruling of Trial Chamber V(a).
“All available means must be employed by the prosecution to ensure that this is not repeated. Those means may include all possible requests for cooperation, even requests for summonses as necessary. When we reconvene on the 16th of June, we expect to have witnesses lined up for testimony to fill the session,” Judge Eboe-Osuji continued.
The judge also said Ruto will be expected to be present in court for the first two days.
Senior Trial Lawyer Anton Steynberg told the court on Thursday that after deciding to withdraw the witness, who is known by the pseudonym “Witness 25,” the prosecution did not have another witness ready to testify.
Ruto’s lead lawyer, Karim Khan, initially objected to the prosecution withdrawing Witness 25 because, he argued, that the witness was important to the defense’s case. Khan later said the defense had no objection to the prosecution withdrawing the witness after reviewing the video of the preparation session prosecutors had with Witness 25 on Wednesday.
Sang’s lawyer, Caroline Buisman, said they had no objection to the prosecution withdrawing the witness so long as the decision was final and there was no chance the prosecution would seek to recall the witness.
While raising his objection, Khan said on Wednesday night at 9:17pm, the prosecution emailed the judges of Trial Chamber V(a), the defense teams, and the lawyer for victims to inform them that the prosecution was withdrawing Witness 25. Khan read excerpts in court in which the prosecution said they made the decision after a preparation meeting held that day. Witness 25 was scheduled to testify after Witness 673, who had begun their testimony on Wednesday.
The following day, Steynberg explained to the court that the prosecution made the decision because during the preparation session it became clear the witness would present confusing testimony. Steynberg also said that the evidence Witness 25 had been expected to present to court was going to be mainly hearsay and “peripheral.”
That same day Khan objected to the withdrawal of Witness 25. He said that there were 25 references to the witness in the decision confirming the charges against Ruto and Sang. He also said that there were 17 references to the witness in the pre-trial brief the prosecution prepared ahead of the case and had been required to give to the defense. In the publicly available copy of pre-trial brief, most footnotes have been redacted.
Khan told the court that the witness had conducted a fraud on the court, being a channel of payments to other witnesses using money received from the United States Agency for International Development (USAID) and foreign embassies in Kenya. Khan said that these payments were made in addition to money the witnesses received from the Kenya National Commission on Human Rights that made the payments on behalf of the ICC prosecution.
“There’s been a lot of discussion in this case about cooked evidence, and we make no bones about it, this witness [Witness 25] was master chef,” Khan said on Thursday. He said seven other witnesses passed through the hands of Witness 25 or received benefits from the witness. Khan said the seven witnesses are: Witness 15, Witness 16, Witness 19, Witness 24, Witness 28, Witness 336, and Witness 613.
Witness 15, Witness 16, and Witness 336 are among eight witnesses the court has ordered be summoned to testify even though they have either told the prosecution they want to withdraw from the case or have simply gone quiet.
Trial Chamber V(a) ruled on Thursday that the prosecution should allow the defense teams of Ruto and Sang to review the video of the preparation session for Witness 25.
On Friday, Khan informed the court that after seeing the video he no longer objected to the prosecution’s decision to withdraw the witness. Khan also said he agreed with the prosecution’s assessment that Witness 25 would present confusing testimony to the court if the witness testified.
Once the issue of Witness 25 was concluded the court’s attention turned to which witnesses would testify next and when. Steynberg told the court the earliest the prosecution would have a witness available to testify would be the first week of June and this would be Witness 405. Steynberg said another witness who had been scheduled to testify in this session, Witness 604, had withdrawn.
The defense had no objection to adjourning until June but cautioned that they should not return to court to listen to the testimony of only one witness, as had happened this week. Khan went further and argued that once the next set of four witnesses testify, the prosecution should close their case until the matter of the summons of the eight unwilling witnesses has been concluded. Judge Eboe-Osuji told Khan that the prosecution will not be asked to do so.
Additional discussion on the matter of when the court will reconvene and which witnesses would be expected to testify was conducted in private session.
Witness 673 concluded testimony on Thursday after testifying completely in private session, so it is difficult to know what the witness told the court.