Witness Testifies About Documents Presented to the Waki Commission

A former staff member of an official Kenyan inquiry into the violence that followed the December 2007 presidential election has testified at the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

The former staff member of the Commission of Inquiry into Post-Election Violence gave his testimony in public at the trial, which resumed on Monday after a month’s break. The former staff member was not named, but he was identified as Witness 247. The Commission of Inquiry into Post-Election Violence was the main Kenyan government investigation into the bloodshed that shook Kenya. The commission and its report are commonly referred to in Kenya as the Waki Commission and the Waki Report after the judge who headed the inquiry, Philip Waki.

Trial lawyer Alice Zago asked Witness 247 to identify some documents that were presented to the commission. Some of the documents in question were presented to the commission during private sessions it held to receive certain witness testimony. Witness 247 was one of the staff on the commission who was responsible for recording and cataloguing exhibits received from witnesses whether in private or public session.

Witness 247 described to the court how he catalogued exhibits received from witnesses using the number allocated to each witness. He also told the court that only he and the librarian of the commission had the key to the cabinet where the exhibits were stored and to the office where the cabinet was located.

He informed the court that the commission’s assisting counsel also marked and stored exhibits in his office. Witness 247 confirmed to the court that the assisting counsel shared the office with the commission’s secretary.

The defense did not dispute that Witness 247 knew which documents were presented to the Commission of Inquiry into Post-Election Violence. The defense, however, questioned whether the documents could be introduced as part of the record of evidence presented to the court.

Zago explained to the court that the purpose of Witness 247 was to fill in some of the gaps concerning a number of documents. Zago said that this was in light of Trial Chamber V(a)’s decision last Tuesday to allow some reports and other documents admitted as evidence and disallowing others. Zago explained that Witness 247 provided information on the author or origin of reports and statements that were unsigned or undated, details the trial chamber had said in its decision are important for it to determine whether to admit them into evidence.

Presiding Judge Chile Eboe-Osuji also asked Zago whether there would be any duplication between the evidence the prosecution is seeking to introduce through Witness 247 and that of Gavin McFayden, who is scheduled to start his testimony next week Wednesday. McFayden was one of the three members of the Commission of Inquiry into Post-Election Violence. Zago said that McFayden would be testifying more on the final report the commission wrote whereas Witness 247 was testifying on specific documents presented to the commission.

After listening to Witness 247 and the arguments of defense lawyers and the prosecution, the trial chamber decided to allow two sets of documents to be admitted as evidence and disallowed one set of documents.

Judge Eboe-Osuji said the judges allowed a statement to the commission by former police chief Mohammed Hussein Ali to be admitted as evidence. He said the chamber also allowed a report of the Kenya Police on the violence between January 2008 and February 2008 as well as the situation preceding that violence to be admitted as evidence.

He said that the documents were being admitted into evidence on the basis that the prosecution had stated, that they will act as background documents and not evidence the prosecution is adducing to prove its charges against Ruto and Sang.

Judge Eboe-Osuji said that Trial Chamber V(a) disallowed the admission of a report prepared for the Waki Commission that the prosecution wanted to use to provide background information, including on questions of tensions between the political parties prior to the election. Trial Chamber V(a) ruled that the prejudicial effects implicated in the body of the report – which focused on sexual violence – had outweighed the probative value of the background information for which the Prosecution was seeking to tender the report.

Witness 247 will continue testifying on Tuesday.

This report has been revised to clarify the circumstances surrounding the trial chamber ruling referred to in the penultimate paragraph.



  1. It is of paramount importance that exhibits are well described and labelled. Such forensic evidence will go a long way in the finality of the matter before court. Good progress.

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