The defense have said they reject the testimony of Witness 495 that prosecution staff gave him a statement they had prepared before they first met him in person and then asked him to simply copy it by hand and sign it.
Deputy President William Samoei Ruto’s legal team made the concession last week. The defense team of former journalist Joshua arap Sang made the concession on Monday. The matter came up while Presiding Judge Chile Eboe-Osuji sought to know from the prosecution at the beginning of Monday’s proceedings what they intended to do with the testimony of Witness 495. The judge said the prosecution had “vigorously cross-examined” the witness and “attacked” his credibility.
Witness 495 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.
Ruto and Sang are on trial and face three counts each of crimes against humanity for their alleged roles in the violence that followed the December 2007 presidential election.
“Mr. Hooper made it very clear on two occasions that the Ruto defense rejects the witness’ testimony – that the OTP (Office of the Prosecutor) effectively put those material in the witness statement,” said Judge Eboe-Osuji, while leading up to the question of what the prosecution wanted to do with the witness’ testimony. David Hooper is a lawyer for Ruto.
A little later Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, said his team shared the same position as that of the Ruto defense team on the matter of Witness 495’s statement.
“We do not share the witness’ position that it is the prosecution which composed the statement and the allegations therein,” said Kigen-Katwa. Senior trial lawyer Anton Steynberg thanked him for making the concession.
In response to Judge Eboe-Osuji’s question, Steynberg said the prosecution would wish Trial Chamber V (a) assess the witness’ testimony in light of the circumstances around his recanting the statement he first made to the prosecution.
After that matter was dealt with, Hooper concluded cross-examining Witness 495. He questioned the witness in private session. Kigen-Katwa then questioned the witness for about an hour.
He asked Witness 495 to confirm that he never mentioned Sang’s name when he had a telephone conversation with a staff member of the prosecution. The telephone conversation took place before the witness gave a statement to the prosecution in November 2012. The witness confirmed he never mentioned Sang’s name during that conversation.
Kigen-Katwa then asked him about the part of his statement in which the witness said Sang had stated on his radio show on Kass FM on December 26, 2007 that there were vehicles belonging to two private transport companies that transported fake ballot papers ahead of voting day. The witness said that was what was in his statement. Kigen-Katwa then showed the witness a news clip in which a prominent leader, Musalia Mudavadi, made allegations that some administration police members had received official instructions to transport fake ballot papers. Kigen-Katwa also showed the witness the front page story of The Standard newspaper of December 26, 2007 which reported similar allegations.
After several questions from Kigen-Katwa, Witness 495 said that he did not listen to the radio on December 26, 2007 as claimed in his statement because he did not have a radio. A little later on the witness said on December 26, 2007 he did not have batteries to power his radio so he was not able to listen to it that day. When Kigen-Katwa finished questioning the witness, trial lawyer Lucio Garcia said he did not wish to re-examine the witness. Judge Eboe-Osuji then told the witness that he was discharged from the stand and also from his subpoena.
After a break, the court then began the preliminaries to allow Witness 516 to testify. The witness is among the nine prosecution witnesses who have been ordered to appear before the court after they ceased cooperating with the prosecution. Like witnesses 604 and 495 before him, Witness 516 is represented by a lawyer, Kenyan advocate Wandugi Karathe.
The court heard in private session submissions from the different parties and participants on whether Witness 516 should be granted in-court protective measures. The court also heard from the prosecution about the possibility of the witness incriminating himself. As happened with witnesses 604 and 495, the court granted Witness 516 in-court protective measures and also protection against the ICC prosecution, preferring any direct or indirect charges against him of corrupting a witness or interfering with a witness. The court, however, warned the witness against committing perjury. The court also ordered that the transcript of the testimony of Witness 516 will be kept under seal.
Witness 516 began testifying in the afternoon and most of his testimony was in private session because Steynberg was asking him background questions that could identify him in public.
Witness 516 will continue testifying on Tuesday.