The prosecution has applied to have Witness 604 declared hostile just hours after the witness began testifying at the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Senior trial lawyer Anton Steynberg told the court on Thursday afternoon the prosecution was making the application because Witness 604 had to be summoned to court to testify. He said the witness also recanted his previous statements and had made serious allegations against prosecution staff.
The witness is one of a group of nine people the court has ordered to testify under subpoena, at the request of the prosecution, amid court concerns over witness tampering and intimidation.
Ruto and Sang are on trial at the ICC for their alleged roles in the bloodshed that followed the December 2007 presidential poll. They each face three counts of crimes against humanity.
Steynberg said the prosecution had chosen to apply for Witness 604 to be declared hostile after questioning him for much of the day. During questioning, the witness confirmed he swore an affidavit dated August 11 this year in which he said parts of earlier statements to the prosecution were false. Witness 604 is testifying via video link from an undisclosed location in Nairobi, Kenya after receiving a summons from Trial Chamber V(a).
When questioned by Steynberg about entries in his diary, Witness 604 told the court he had falsified some of them. The witness said he did this in the presence of investigators from the Office of the Prosecution when he met them last year, and they knew he was making false entries.
“The witness ascribed actions to prosecution investigators, which if true amount to crimes, serious crimes,” said Steynberg, while making his application.
Ruto’s lawyer, Karim Khan, said that the prosecution’s application was poorly founded in law and was premature.
“It’s lazy prosecution, I’m sorry to say,” Khan told the court. “They haven’t even attempted to take the trouble to enlighten us and your honors of which parts of the statement are true.”
These submissions took the court to the end of the proceedings for Thursday. Sang’s lawyer, Caroline Buisman, will speak next on the issue on Friday when the court reconvenes.
At the beginning of the day, Presiding Judge Chile Eboe-Osuji read out further reasons Trial Chamber V(a) had for granting in part the application by Witness 604 to have his testimony postponed. The witness had made the application through his lawyer, Gregory Mutai, on Monday.
Judge Eboe-Osuji said the judges made their decision to postpone the testimony of Witness 604 for two days, rather than the 21 days the witness was seeking, because the issue of the health of the witness was only raised at the last minute.
The judge said Mutai first asked for a postponement on August 26 on the grounds he needed to take instructions from Witness 604. When the chamber rejected that application, Mutai then asked on August 27 for the chamber to reconsider its decision on the grounds that he needed time to prepare. When the chamber rejected that request, Judge Eboe-Osuji said Mutai then wrote to the chamber informing it that his client was unwell. It was also noted that at no time in contacts with staff of the Victims and Witnesses Unit (VWU) of the ICC between August 5 and August 27 did Witness 604 raise the matter of his health with them.
Judge Eboe-Osuji said the medical certificate that Mutai submitted on behalf of his client did not address specifically the issue of whether he is fit to testify. He said this is why the court ordered the VWU to have its psychologist assess the witness. That psychologist said in their preliminary assessment that Witness 604 was fit to testify. Judge Eboe-Osuji also said that when the VWU arranged for a doctor to examine Witness 604 this week, the witness said he did not need to see a doctor and is ready to testify.
After Judge Eboe-Osuji read the chamber’s reasoning, the court went into private session to allow the judges to hear submissions on the prosecution’s application for in-court protective measures for Witness 604. The court granted those measures, which include image and voice distortion in any transmission of the court’s proceedings. The measures also include the witness being referred to by pseudonym.
During the witness’s introduction, Judge Eboe-Osuji repeated to him the decision made on Tuesday that the prosecution will not file charges against him directly or indirectly, except if he committed perjury. The judge also repeated the decision made on Tuesday that the transcript of the testimony of Witness 604 would be kept under seal and will not be released without a court order.
Steynberg then began the prosecution’s examination-in-chief of the witness. The prosecutor asked some of his questions in private session because of the personal nature of the information he was soliciting. Typically the prosecution’s first set of questions involve confirming a witness’s personal details. Once Steynberg finished that line of questioning he asked the witness about the political atmosphere in the Turbo area before and after the December 2007 elections. Steynberg also asked Witness 604 about Ruto’s political power and influence in Turbo and the wider Rift Valley region.
When he finished with those questions, Steynberg turned to asking Witness 604 about a diary he kept at the time, the statements he made to prosecution investigators, and the affidavit he swore last month.
“The information that you filled into the diary was that correct or was that incorrect?” Steynberg asked the witness.
“Some were true, some were false,” responded Witness 604.
“Did the investigators know that part of the information was false?” asked Steynberg.
“Yes,” Witness 604 answered.
“And why were you filling in false entries in this diary?” Steynberg inquired.
“It was to concur with what I had told them before,” Witness 604 said.
Steynberg then asked Witness 604 why he made false statements to the prosecution. The witness said another prosecution witness approached him last year and told him the prosecution was still looking for witnesses. Witness 604 said that other prosecution witness told him if he testified, his children’s education will be paid for by the ICC, and he could move to a country of his choice.
Witness 604 also said he has always been opposed to Ruto, “so that hatred that I had on Ruto also provoked me to give false statements.”
It was at the conclusion of these questions Steynberg informed the court he felt constrained to make an application at that juncture and he asked Witness 604 leave the court. This is when Steynberg applied for Witness 604 to be declared hostile.
The hearing will continue on Friday.