International Criminal Court (ICC) judges have directed Witness 604 to begin his testimony on Thursday in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Trial Chamber V(a) made the decision on Tuesday after listening to submissions from Gregory Mutai, the lawyer for Witness 604, the prosecution, the defense, the lawyers for victims, and the Registry.
Presiding Judge Chile Eboe-Osuji said that the preliminary assessment of the Victims and Witnesses Unit (VWU) was that Witness 604 was sufficiently fit to testify. On Monday, Mutai told the court Witness 604 was not able to testify immediately because he was suffering from depression, and he had filed a doctor’s report with the court last week to that effect. The court then ordered the VWU to have its own doctor and psychologist examine Witness 604 and report back to the court.
Judge Eboe-Osuji said that Mutai’s application to be permitted to appear before the ICC had been provisionally approved on Monday evening, and therefore he could represent Witness 604 during the proceedings. However, Judge Eboe-Osuji said Mutai’s function was limited to guiding the witness on matters relating to possible self-incrimination.
The judge also said Mutai was expected to explain the undertaking by the prosecution, which was approved by the court, that Witness 604 will not be charged directly or indirectly for any offence that falls under Article 70(1)(c). This is the provision of the Rome Statute that deals with offences against the administration of justice, such as attempting to corruptly influence a witness or interfering with a witness’s attendance or testimony before the court.
This issue was discussed for some length on Monday because the witness submitted through Mutai an affidavit in which he is said to have recanted some of his statements to the prosecution. Senior trial lawyer Anton Steynberg said there were some questions around the circumstances under which Witness 604 made the affidavit that was sent to the prosecution in mid-August this year. Judge Eboe-Osuji asked Steynberg on Monday whether the actions of Witness 604 leading up to his affidavit was something the prosecution was considering looking into with a view of drawing up charges. Steynberg said the prosecution was only interested in having the witness testifying and would be willing to not pursue any possible charges under Article 70 to secure the testimony of Witness 604.
On Tuesday, Judge Eboe-Osuji said the chamber will, at a later date, elaborate its reasons for making its decision concerning Witness 604.
Witness 604 was originally scheduled to testify in May but withdrew, forcing the prosecution to ask for an adjournment. This resulted in Trial Chamber V(a) reprimanding the prosecution because the proceedings were adjourned after only hearing one witness for two days, yet that session had been scheduled to last for four weeks. At the time Judge Eboe-Osuji said the prosecution should do all it can to ensure subsequent sessions are not similarly cut short. He said this could include requests for summons.
The following month, on June 9, the prosecution filed a confidential request for summons. The defense filed their confidential responses. The chamber then issued a confidential decision on June 19 ordering the Kenyan government to compel Witness 604 to appear before the ICC via video link from Kenya. A redacted version of Trial Chamber V(a)’s decision was later posted on the ICC website.
Once the court finished with the matter of the testimony of Witness 604 on Tuesday, its attention turned to an application the prosecution made to have 80 items added to its evidence. It was unclear when the application was made. However, from submissions before the court the defense has had time to file responses to the application, and the prosecution has filed a reply to those responses.
Steynberg told the court that the items in question included screening notes, single page investigator’s notes, photographs of cell phone records, and one photograph of a meeting. He said these documents relate to Witness 604 and the next witness scheduled to testify, PW 495. Steynberg said most of the documents had been disclosed to the defense a month ago.
Steynberg argued that the documents should be admitted into evidence so that the prosecution could use them to challenge any inconsistencies in the witnesses’ testimony against the information they had previously provided the prosecution. He said it was also information that was important to show the chamber because it provides a sense of the bigger picture of the campaign of witness intimidation, which was not limited to an isolated case of one or two witnesses.
“One does not waste one’s time and money to expose witnesses who are doomed to be exposed as liars and charlatans,” Steynberg told the court. He also emphasized the prosecution did not intend to use the documents as a means of introducing into the case under consideration another case of offences against the administration of justice, also known as Article 70 proceedings.
Steynberg said the prosecution was clear that if there was a case against anyone for interfering with witnesses or attempting to bribe them, it would be filed with the pre-trial chamber. Steynberg also emphasized that Ruto had not been directly implicated in any of the allegations of witness interference.
Orchlon Narantsetseg, the legal representative for the victims, said he supported the prosecution’s application.
“In our respectful submission, the prosecution should be allowed to use those items in order to show you the alleged acts of interference and the impact of that interference,” Narantsetseg told the court.
Ruto’s lawyer, Karim Khan said that he partially supported the prosecution’s application. Khan said that so long as the documents were used to confront the witnesses with information they had previously given to the prosecution Ruto’s defense had no problem with that.
“You can recant or you can stick to your original statement. The important point is the witness telling the truth here before your honors,” Khan said. He said Ruto’s defense would have a problem if the prosecution went beyond that to begin arguing matters that belong to separate Article 70 proceedings.
Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, said he also partially supported the prosecution’s application.
Judge Eboe-Osuji said the trial chamber would make a decision on the matter before Witness 604 began testifying on Thursday.