The prosecution has asked a witness at the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang whether he recanted his earlier statements to investigators because he had been bribed.
It is unclear what Witness 604 answered because most of the final part of the prosecution’s cross-examination took place in private session during the morning part of Wednesday’s proceedings. It is also unclear if the prosecution named individuals they allege bribed the witness.
Witness 604 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.
The information of the prosecution’s question came out when the court returned to open session, and Ruto’s lead lawyer, Karim Khan, objected to how the prosecution got to the point of asking the witness about bribery allegations.
“The point is no evidence has been led by the prosecution that this witness has recanted because of bribes or inducements,” said Khan.
Senior trial lawyer Anton Steynberg disagreed with the objection, arguing the prosecution had “a reasonable objective basis for putting that question.”
Presiding Judge Chile Eboe-Osuji said it was difficult to argue that the prosecution had not laid a basis for asking questions about bribery allegations. Judge Eboe-Osuji reminded Khan that the prosecution had tried to put “certain material” into evidence, but the court declined because the material had not been disclosed to the defense. Judge Eboe-Osuji then closed the discussion on the matter.
Ruto and Sang are on trial for their alleged roles in the bloodshed that followed the December 2007 elections in Kenya. They each face three counts of crimes against humanity.
When the court opened for the day on Wednesday, Steynberg asked Witness 604 about a Kalenjin word, tyoong’iik, which the witness said translated to mean either a wild or domestic animal. Steynberg then asked him whether he was afraid something bad could happen to him if he gave evidence that implicated the accused.
“One, is that I don’t have any evidence against the two and then, two, I don’t fear anything,” Witness 604 replied.
Steynberg then asked the court to go into private session because he was going into an area of questioning in which Witness 604 might incriminate himself. Last week the prosecution said that they would explore the reasons they believe Witness 604 has recanted statements he made to prosecution investigators, and the witness may incriminate himself. The prosecution undertook not to pursue any charge against Witness 604 either directly or indirectly because they were only interested in showing the court what they consider to be the circumstances under which the witness changed his testimony. The court agreed that whenever the prosecution pursued that line of questioning the session would be held in private because the prosecution said the witness would be expected to talk about individuals who are suspected of being involved in interfering with prosecution witnesses.
When Steynberg finished cross-examining Witness 604, Essa Faal, a member of Ruto’s defense team began questioning him. Faal asked the witness questions about two diary entries he had made. One entry was about the day of the nomination of candidates of the Orange Democratic Movement (ODM) party for elective posts in the 2007 elections. The other entry was about a fund-raising event Ruto was supposed to have presided over at a school in the Turbo area in 2007. That year Ruto was a Member of Parliament and key leader of ODM.
Early on in his questioning Faal faced his first test of questioning a prosecution witness who has been declared hostile. Steynberg raised the issue of whether the defense could ask leading or closed questions after the court had declared Witness 604 hostile to the prosecution. Steynberg argued the defense would now have to ask open-ended or neutral questions because the testimony of the witness was favorable to them. Presiding Judge Chile Eboe-Osuji said the proceedings had not yet reached that point where the court had to make a ruling on the matter, but Steynberg had alerted the defense to its changed role.
Trial Chamber V(a) declared Witness 604 hostile to the prosecution on Monday. This meant the prosecution could cross-examine him and challenge his testimony. Ordinarily, the prosecution would have asked its own witness open-ended or neutral questions. This is because the prosecution usually presents evidence to support its case through its witnesses and is not permitted to suggest answers to the witnesses or confront them.
Continuing his questioning of Witness 604, Faal presented him with selected articles in the Saturday Nation and Saturday Standard of November 17, 2007 as well as the Sunday Nation of November 18, 2007. The articles Faal focused on were about the party nominations of their candidates for the election later that year. All the articles referred to the nominations beginning on November 16.
“Would you agree therefore that the ODM parliamentary nomination exercise was held on the 16th November and not the 15th November?” asked Faal, referring to an entry in the witness’s diary that had said the nominations were held on November 15, 2007.
“Yes, I accept,” replied Witness 604.
Faal then moved to asking him about a fundraising event at a school in the Turbo area during 2007. Faal showed the witness photos, a visitor’s book, and minutes of a joint meeting of the school’s board of governors and parents teachers association. Witness 604 examined the photos and read the documents and said they showed that Ruto attended a fundraising event, or harambee as they are commonly called in Kenya, on July 4, 2007. Faal then told the witness that Ruto’s defense had verified that there was no other harambee in 2007 at the school in question.
“What does that say about your account that there was a harambee at the school on 19th November?” asked Faal, referring to an entry the witness made in his diary that Ruto was at a harambee at the school on November 19, 2007.
“It says that that date was false,” replied Witness 604.
Faal then showed the witness an article in the Daily Nation from November 20, 2007. Faal read excerpts of it which stated that Ruto was among the ODM leaders meeting the previous day trying to resolve the disputes from the party’s nomination process.
“And Mr. Witness, having seen this newspaper which says Honorable Ruto was locked up in meetings for the entire day on 19th November, 2007, what do you say to that?” asked Faal.
“I say that the harambee never took place at location D,” replied Witness 604, using the pseudonym for the school he had referred to in his diary.
“So why did you state that?” asked Faal.
“I had said earlier that it was to concur with the statement I had given to the investigators,” Witness 604 answered.
“Was it true what you gave to the prosecution?” Faal asked.
“It was not true,” the witness responded.
Witness 604 will continue testifying on Thursday.