Defense Supports Witness’ Testimony that Events Never Occurred; Kenyatta Trial Date Set Aside

A defense lawyer used news footage and newspaper articles to show the International Criminal Court (ICC) that events Witness 495 described in a statement he made to the prosecution either took place on a different date and venue, or never occurred.

David Hooper, who is representing Deputy President William Samoei Ruto, told the court on Friday he did not dispute Witness 495’s testimony since Tuesday that most of his November 2012 statement to the prosecution was false.

Ruto has been on trial since September last year on three counts of crimes against humanity. The charges stem from his alleged role in the violence that followed Kenya’s December 2007 presidential poll. On trial with Ruto is former journalist Joshua arap Sang. He is also facing three counts of crimes against humanity for his alleged role in the bloodshed that occurred between December 2007 and February 2008.

The witness is one of a group of nine people the court has ordered to testify under subpoena, at the request of the prosecution, after they disavowed earlier statements supporting the prosecution case. The prosecution has sought to attack the credibility of the revised testimony, delivered via video link from Kenya, against a background of court concerns over witness tampering and intimidation.

Hooper began his cross-examination of Witness 495 by asking him whether it was correct that the witness had said in court that most of his statement to the prosecution was untrue. Witness 495 said yes.

Ruto’s lawyer then referred him to a December 23, 2007 political rally the witness had told the prosecution took place at Kipchoge Stadium in Eldoret town. Hooper said it was the defense’s position that the Orange Democratic Movement (ODM) party held a rally at Huruma grounds in Eldoret and not Kipchoge Stadium, as the witness had said in his statement. In December 2007, Ruto was seeking re-election as a member of parliament on an ODM ticket. Ruto was also a key leader of the party that year.

Hooper also said on Friday that the rally took place on December 20, 2007, and was the last one ODM held in Eldoret before voting day. In 2007, Kenya’s General Elections were held on December 27.

He then played for the witness a news clip of a report from the NTV station showing the rally at Huruma grounds. Hooper also said there were newspaper articles that placed the rally taking place on December 20, 2007. He did not have them shown on the court’s monitors because he said they had been shown when an earlier witness testified in court, but the articles were in bundles the defense had prepared for the judges.

Hooper then asked Witness 495 about a meeting that he had said took place at Ruto’s home after the December 23, 2007 political rally. He asked the witness whether it would have been possible for him to attend the rally and then later reach Ruto’s home. The witness said no.

“It’s our case that there was no ODM meeting in Eldoret on the 23rd of December. It’s our case that there never was a political meeting at Kipchoge Stadium. In other words, we support what you say, what you say about events. Those facts are demonstrably untrue,” said Hooper.

A little later on, Hooper stated, “What I submit is that the heart of your statement concerning Mr. Ruto is all lies, isn’t it?”

“Yes, your honor,” answered Witness 495.

Hooper then asked him about events that occurred on December 26, 2007. After that, most of Hooper’s questioning for the rest of the day was done in private session.

The day’s proceedings began with trial lawyer Lucio Garcia continuing to question the witness in private session. After the court’s morning break, Garcia sought to enter into evidence three audio recordings. One of the recordings is of a conversation Witness 495 had with another prosecution witness. The recordings were played in private session so it is not publicly known what was said in those recordings.

Presiding Judge Chile Eboe-Osuji ordered that one recording be logged as a prosecution exhibit. The other two recordings were only marked for identification, because they will form part of submissions that have been scheduled for Monday. The submissions will be on subsection two of Article 55 of the ICC’s Rome Statute. This subsection of Article 55 deals with the rights of individuals during an investigation, particularly if there are grounds to believe they may have committed a crime under the court’s jurisdiction.

Earlier in the day Judge Eboe-Osuji had emphasized that the chamber wanted all parties to finish questioning Witness 495 by the end of Friday. It is unclear whether that happened because the day’s proceedings ended in private session. So it is also unclear whether Witness 495 will continue testifying on Monday.

In the separate Kenya case at the ICC involving President Uhuru Muigai Kenyatta, the judges of Trial Chamber V (b) set aside the scheduled trial date of October 7. The judges said in their Friday decision that they have ordered a status conference be held on October 7 and 8 instead. They also said Kenyatta should be present in court on October 8.

On August 28, Trial Chamber V (b) asked the prosecution to state in writing whether it was ready to go to trial. The chamber also asked the defense and lawyer for victims to respond to the prosecution’s submissions within five days of those submissions being filed. The prosecution asked for the trial date to be pushed back. Kenyatta’s lawyers asked for the case against to be terminated.


  1. icc should stop wasting time n funds on the unseen crimes terminate all cases n retain dignity of the court.

  2. The trial judge in ordering one of the recordings to be prosecution evidence is quite interesting,I think

  3. The truth to be said Raila and Ruto will never go unpunished karim khan and hooper are working for devil their client are marderers we was here we was not blind we show in social media radio and tv odm pentagon goons Raila odinga must be arrest y not

  4. iam cinfused,is this drama or an international case.Our courts and investicator are aclass high than this!!!

  5. This is for my bro muriungi never call others

    murderers. And if they are our God Just He will expose them so don’t judge them

  6. murderers???? show how this qualify,,,,,don’t tell us 2007 post election violence,,,,,,and ofcose Railla was a winner its only that mentality of undemocrats snab his victory.

  7. Bensouda said previously, that information sort from the Government of Kenya would only serve to either bolster her case or be irrelevant to the case, I quote- paraphrase!

    Now she states, her case cannot hold truth beyond a reasonable doubt… and goes on to blame the Government of and Kenya, as well as, Mr Kenyatta. (As he is known to the court).

    She has not shown nor indicated that she has partial evidence that would indicate the need for factual proof. Not now, not at the sharing of evidence with the defense and not during the initial pre-trial Chamber!

    Let us also not forget that the case was also predicated on the OTP’S accusation that one, the accused was the leader responsible for 2008 PEV, and secondly motivated by the intention to be President of Kenya.

    Something doesn’t gel here…

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