Judges Rule ICC Prosecution Can Treat Witness 604 as Hostile

Judges of the International Criminal Court (ICC) have allowed the prosecution to treat as hostile Witness 604, who was testifying for the third day in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Trial Chamber V(a) made the decision close to the end of Monday’s proceedings after senior trial lawyer Anton Steynberg spent the morning and most of the afternoon questioning Witness 604 on his statement recorded last year with investigators and clarifying which portions he now said were fabricated.

On Thursday, the chamber had declined to grant Steynberg’s application, saying it was premature. The chamber advised Steynberg to further explore the areas that Witness 604 said he was recanting in an affidavit he swore in Kenya in August this year.

“In the present case, the chamber has noted the extensive degree in which the witness’ testimony has diverged from the statement he provided to the prosecution,” said Presiding Judge Chile Eboe-Osuji. “The request is therefore granted.”

Before the chamber made its decision, Steynberg told the court he had exhausted all the areas he could explore with Witness 604 about his original statement and reapplied for the witness to be declared hostile.

Judge Eboe-Osuji then gave Steynberg, the lawyers for the defense, and the legal representative of the victims a few minutes each to make oral submissions on the matter. Steynberg said Witness 604, while testifying in court, had diverged so far from his original statement that he had recanted every major allegation he had made against the accused.

“He’s denied implicating Mr. Sang even when he did not implicate Sang,” Steynberg said, arguing for his application to be granted. “He’s been evasive on a number of occasions.”

Orchlon Narantsetseg, the legal representative of the victims, said he supported the prosecution’s application. Karim Khan, Ruto’s lawyer, opposed the application as did Caroline Buisman, Sang’s lawyer.

Khan said it was obvious that Witness 604 had “derogated an account that the prosecution swallowed hook, line, and sinker.”

“The question is have the prosecution established that the witness is not interested in telling the truth? We say no,” Khan said.

Buisman said the Sang defense team shared the observations made by Khan. She also submitted that the chamber’s threshold for declaring a witness hostile should be the criteria set out in an April 25, 2005 decision of Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY).

Buisman quoted part of paragraph 31 of that decision and noted Trial Chamber II of the ICTY had said it was helped in reaching its determination of whether a witness was hostile by the high standard of record keeping the prosecution maintained in that case. Buisman pointed out that in the application before Trial Chamber V(a), all that was available was the statement of the witness. The questions that were asked of the witness during the statement-taking process were not provided, Buisman said.

After consulting for a few minutes with fellow judges Olga Herrera Carbuccia and Robert Fremr, Judge Eboe-Osuji then delivered the chamber’s ruling.

At the start of the day, Steynberg continued where he left off on Friday, taking Witness 604 through his statement, asking him what was true and what was false. Steynberg asked about allegations the witness had made in his statement about a meeting at Ruto’s house in Sugoi, two political rallies, and whether he had listened to Kass FM during the election period and after. The prosecutor also asked Witness 604 about a shooting incident at Turbo police station and looting that he saw.

Ruto and Sang are each facing three counts of crimes against humanity for their alleged roles in the bloodshed that followed the December 2007 presidential poll. Ruto at the time was a Member of Parliament and prominent leader of the Rift Valley region. Sang was a prominent presenter of the Kalenjin language radio station, Kass FM.

Steynberg asked Witness 604 about a rally Ruto addressed in December 2007. The witness said the rally never took place, and he made it up. Steynberg then asked the witness to compare his statement with his diary because in his statement he said the rally took place in early December, and in his diary he said it took place on December 21, 2007.

“You told the court last week that you went to fetch your diary and added entries that would correspond with your statement, is that correct?” asked Steynberg, referring to the witness’s testimony on Thursday.

“Yes,” responded Witness 604.

“Why is there this discrepancy?” Steynberg asked.

Witness 604 explained that the entries had been “cooked” and then added, “I don’t remember why we had to push it to 21st December.”

Later on Steynberg asked the witness why he implicated Sang in his statement. Witness 604 said he did so on the advice of the other prosecution witness who had encouraged him to testify in order to reap the benefits of being a prosecution witness. Steynberg then referred him to his affidavit in which Witness 604 said he was recanting the allegation he made against Sang that Sang used derogatory words against non-Kalenjins in his broadcasts at Kass FM as a way of inciting Kalenjins against them.

“Nowhere in this statement you made to the investigators do you in fact say that Sang used the words kimurkelda or kamama. Why is it that in your affidavit you said these false allegations that are in fact not contained in your statement?” Steynberg asked.

“As I had said earlier when I was giving my affidavit I didn’t have the statement at hand,” Witness 604 replied.

“So that is your explanation?” Steynberg asked.

“Yes,” responded Witness 604.

On Friday, Witness 604 had told the court that kimurkelda and kamama were Kalenjin words. He explained that kimurkelda meant stained teeth. It was difficult to hear the definition he gave for kamama. Witness 604, however, on Friday declined to state whether the words referred to a particular ethnic group.

Steynberg continued with the line of questioning about Sang and the station he worked for.

“Were you in fact listening to Kass FM during the post-election violence?” Steynberg asked.

“No, I was listening to [Radio] Citizen,” said Witness 604. Radio Citizen broadcasts in Kiswahili, one of Kenya’s national languages.

After Trial Chamber V(a) made its decision to declare Witness 604 hostile, Steynberg returned to asking the witness about the affidavit he swore on August 11 this year. He began by asking Witness 604 whether he wrote the affidavit the same day it is dated, and what lead him to swearing an affidavit recanting portions of his statement. Witness 604 said the affidavit was written the same day it is dated, and he said that he changed his mind about his statement when he had time to think about it. Witness 604 also said he chose Gregory Mutai to help him with the affidavit because he is a lawyer he had known for five years. The witness also told the court he traveled to Nairobi on August 10 to meet staff of the ICC’s Victims and Witnesses Unit because the following day he was supposed to leave the country to prepare to testify at the ICC.

The remaining minutes of Monday’s proceedings were in private session. Witness 604 will continue testifying on Tuesday. The witness is testifying in Nairobi under subpoena from the court. He is addressing the court via video link from an undisclosed location and his lawyer, Mutai, is present with him during the hearing.


    1. Are you then insinuating that the suspects are guilty even after hearing from the witness horse’s mouth?

  1. I think an international court has the best brains on the planet
    they have no intention of doctoring the outcome of a case of such great
    magnitude where lives were lost.Please as kenyans we have to learn
    and be honesty in all our dealings.Remember if icc fails then justice
    comes from the same God that you claim to have rescued you from

  2. The current witness is showing the world how falshood is manufacrured to nail innocent persons especially so to those in Africa and it is now cristal clear that some NGOs in Kenya and political opportunists coached and trained the witnesses case in point witness 604.Terminate the case to save icc face of failure to carry out proper investigations on Kenyas cases

  3. For sure ICC fails from the begging by implicating innocents in the name of justice for the victim sincerely everybody knows that nobody planned for the post election violence. Bensounda should get it from me.

  4. In icc its like the prosecution is not based on factuals obtained from serious investications but some stories cooked and presented by fake witnesses. How do we trust the prosecution on previous other non kenyan cases if this is how they do their investication?! Hope the judges of the court will uphold the fairness of Justice in the wake of these blatant failures by prosecution,otherwise icc shall fail to be the HEIGHT of JUSTICE IN THE WORLD.

  5. You Kenyans, remember people were killed and displaced during post election. What the international community is trying to do, is to find justice for the victims, and to send message to others who might have the same ideas of killing people in Kenya and else where in the World that shall not be tolerated. There is no any reason and no intention at all from international community of victimizing any one at all, so please do not be very negative agaisnt ICC and its staff. We are sure if Rutta and Kenyatta are innocent, which is likely to be, then will be free.

    Remember some people must be hold accountable for that killings and sufferings of so many people, We non Kenyans expect to see you Kenyans are looking more people added to this case, like you are eagerly looking toward for your judicial and security organs to giving you answers on who were behind terrorist attacks at West gatte Mall, and actually Kenyans are interested to see those who were behind those attacks which killed less than 100 people are punished for that acts, but the same Kenyans are looking for suspects of more than 1200 deaths are set free, and they are not giving clue to who were behind those killings.

    Let me ask this questions to you Kenyans: Rutta, Sang and Uhuru are innocent and soon will be acquitted, then what next?, do you have other names of suspects to be taken to the court, or you want to call it a day?. If you have names then we hope you Kenyans to come out and give evidence on that, instead of you coming out against those who decided to give evidence against accused. You are interested and very good to comment and give evidences that will free accused, but you do not bother at all to give evidence to bring those who were behind those killings to justice.

    You are saying Rutto, Uhuru and Sang did not participate, “fine” lets assume is true, we would appreciate very much if you would tell the World who participated rather than who did not participate. If you do that, then you remain ” Kenya hakuna matata,” other wise you will continue killing each other with the support of all-shabab indefinitely, because those Kenyans whose relatives lost their lives would like to receive justice, if they don’t get it, as a reaction will either support terrorists, or they will join terrorists groups like what is happening along the coast of Kenya.

    After Nigeria, Kenya is most likely to be second African Nation to be attacked by terrorists, some of the factors which contribute for these attacks are injustice, corruption, tribalism, poverty and other unaddressed
    differences, to large extent many of these exist in Kenya. Work up Kenya now before is late.

  6. Truth can never betray you. You live by the truth, you will have less problems because your memory will reconstruct reasonably fast. You lie the Kenyan style, the memory fails to reconstruct and you end up miserable!! These are good lessons for all to borrow.

  7. No one refutes your assertion on the good intentions of the international community.

    However,what is contested though is belligerance exhibited by the OTP, especially their failure to listen to the general view that they may have swallowed concocted evidence from NGOs hook, line and sinker to fix targets for political reasons.

    That they also may have taken the easier route and avoided undertaking independent investigation.

    And that they may have started from a wrong footing with the assumption that bearing ‘the greatest responsibility’ did not necessarily mean top shots up the political ladder giving orders.

    On this you may consult the bible before writing acres of space: seek ye the kingdom first and all these things be yours as well.
    Put differently, politics is the super structure… the rest belong in the sub structure under the command of the king/king-to-be.

    Kings and kings-to be belong in the super structure category, have ability to exact compliance from rank and file, even criminal liabilities (in my opinion) done by the latter as part of the bidding.

    Why the O’campos therefore excluded combatants in the 2007/8 political contest is what is baffling many. I hope this gets you started from some informed point of view.

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