Second Former Prosecution Witness Declared Hostile

Witness 495 has become the second prosecution witness to be declared hostile in the trial at the International Criminal Court (ICC) of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Trial Chamber V (a) made the decision on Thursday after trial lawyer Lucio Garcia asked the three judges to consider declaring the witness hostile. None of the defense lawyers opposed the application. The legal representative of the victims supported the prosecution’s application.

“As regards the present application … none of the parties and participants, I should say, has argued that the circumstances of this witness’ testimony thus far is any different or are any different from those under which Witness 604 was declared a hostile witness in particular,” said Presiding Judge Chile Eboe-Osuji, speaking on behalf of his fellow judges, Olga Herrera Carbuccia and Robert Fremr.

“On that previous occasion the chamber considered the extensive degree to which the witness’ testimony had consistently and systematically diverged from the statement that the witness had given to the prosecution was enough to warrant having the witness declared hostile. And the prosecution application on that occasion was granted. Similarly it is granted in this instance for the same reason,” Eboe-Osuji said.

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.

The normal practice in court is for the prosecution to ask a witness they have called open questions so the witness can give evidence in his or her own words. This also applies to defense lawyers when they call witnesses to give evidence in support of their case. This kind of questioning is called “examination in chief”. But if a witness is declared hostile, it means the prosecution can cross-examine the witness, asking him or her leading questions and also putting propositions to the witness to respond to.

Ruto and Sang are on trial on three counts of crimes against humanity each for their alleged roles in the bloodshed that followed the December 2007 presidential poll.

Garcia made the application to declare Witness 495 hostile at the start of the day’s proceedings. He argued that the witness had departed “systematically” from the statement he gave the prosecution in November 2012. Garcia also said the prosecution had asked the witness neutral questions since the examination in chief began on Tuesday afternoon and had exhausted that avenue of questioning the witness. He said the prosecution wanted the witness declared hostile so that the prosecution could then ask him closed or leading questions to show why he had disavowed his earlier statement to the Office of the Prosecutor (OTP).

“I have no reasonable basis upon which to object to my friend’s submission or to oppose my friend’s submission,” said David Hooper, the lawyer for Ruto. He said, however, the chamber should consider whether declaring Witness 495 would assist it.

“I submit that you as a chamber have a general discretion on whether you want to continue to hear the witness,” said Hooper.

Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, said he also did not oppose the prosecution’s application.

“Your honours, we couldn’t imagine a situation where a witness could depart (from his statement) even more than this witness did in the circumstances,” said Orchlon Narantsetseg, while speaking in support of the prosecution’s application. Narantsetseg represents the victims in the case.

Once the chamber found in favour of the prosecution’s application, Garcia began cross-examining Witness 495. He asked about a discrepancy between his handwritten statement and the 17-page typed statement that he signed.

Garcia said Witness 495 named in his handwritten statement 10 men from a village that was not named in open court who the witness said had been beaten for not attending a meeting. Garcia said most of those men were not named in the typed statement. He asked the witness several times why that was the case.

“Would agree with me that almost the entirety of the 10 names do not appear in the statement to the OTP?” asked Garcia.

“I can’t remember whether they appear because I have not gone through my statement,” replied Witness 495.

On Wednesday the chamber ordered that the witness and his lawyer James Njoroge Njuguna be given the statement to review during the lunch break when Hooper raised the issue of how the witness could respond to some questions when he did not have a paper copy of his statement in front of him. On Thursday, when the typed statement was called up on the monitor for the witness to see, he then gave different explanations for the difference between that statement and the one he handwrote.

Garcia then asked the witness about another prosecution witness whom Witness 495 said was the one who got him to give a statement to the prosecution. As soon as that line of questioning began the court went into private session. Much of Thursday’s proceedings were in private session. The day ended with the court in private session.

Witness 495 is testifying via video link from an undisclosed location in Nairobi. His lawyer, James Njoroge Njuguna, is also present. Njuguna is only allowed to advice his client and address the court if a line of questioning may lead Witness 495 to incriminate himself.

The witness will continue testifying on Friday.

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