A witness told the International Criminal Court (ICC) that twice in the past four months he failed to meet court officials and travel to The Hague to testify in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Witness 604 admitted on Tuesday to being a no-show on June 2 and in mid-August this year after being in contact with staff of the Office of the Prosecutor (OTP) and Victims and Witnesses Unit (VWU) about appearing before the ICC.
The witness made this admission during cross-examination by senior trial lawyer Anton Steynberg. Witness 604 gave two separate reasons for changing his mind about going to The Hague to testify.
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.
First, when Steynberg asked the witness what made him not show up to meet staff members of the VWU on August 10, Witness 604 replied he had met his priest in early August, and the priest convinced him that if the account he had given prosecution investigators was false, he should tell the truth.
Steynberg later pointed out to the witness that this was the first time he was talking about meeting a priest because that account was not included in the affidavit he swore recanting portions of his statement to the prosecution.
“I did not even tell my lawyer that I had consulted the priest. The affidavit was a general document to say I had recanted my statement,” Witness 604 replied.
Later on in his questioning, Steynberg revisited the issue of why the witness decided not to testify at The Hague.
“So what changed your mind?” asked Steynberg.
“At that time I did not see any difference to testify in The Hague and testifying in Kenya,” explained Witness 604.
Steynberg asked the witness to confirm whether he spoke to the staff of the VWU on August 8 this year. Witness 604 confirmed he did.
“And yet you still at that stage did not mention to the prosecution or the VWU that you did not wish to travel to The Hague?” asked Steynberg.
“Yes,” Witness 604 replied.
“Why not?” Steynberg asked.
“I do not have a reason,” replied Witness 604.
“Isn’t it true that between the 8th of August and 11th of August, someone persuaded you not to come?” Steynberg asked. The witness’s reply was made in private session.
On Monday, Trial Chamber V(a) declared Witness 604 a hostile prosecution witness. This decision allows the prosecution to cross-examine the witness and also ask him leading questions. Ordinarily, the prosecution would only ask neutral questions of its own witness to get the witness to elaborate evidence he has presented to the prosecution. In the case of Witness 604, however, the prosecution has argued that his testimony in court diverged so much with the statements he had given to the prosecution that the prosecution needed to treat him as a hostile witness. The chamber accepted this request yesterday.
On Tuesday, Witness 604 also told the court he gave prosecution investigators names of individuals suspected of being involved in interfering with prosecution witness. He said he was given the names by another prosecution witness who asked him to relay them to the investigators. Witness 604 said the other witness told him she cannot give the names to prosecution investigators because she is living outside Kenya under the prosecution’s protection and is not supposed to be communicating with individuals in Kenya.
During the mid-morning session Steynberg alerted the court that his line of questioning would get into matters in which the witness may incriminate himself, and the court may need to go into private session for that purpose. Later the judges asked Witness 604 to be taken to an anteroom so that they could inquire from the prosecution why it was necessary to hold the proceedings in private session when the prosecution had given an undertaking that they would not charge the witness directly or indirectly for anything he said in court that could incriminate him. Steynberg said the prosecution still stood by that undertaking but that did not stop anyone else using the information the witness gave in court from charging the witness in their jurisdiction. The judges accepted the prosecution’s explanation and then allowed the witness back into court.
Witness 604 did not testify during the afternoon session. Presiding Judge Chile Eboe-Osuji said at the beginning of that session that there was a problem with the video link from Nairobi because the location the witness was testifying from had problems with its electricity supply. Judge Eboe-Osuji said the court had no indication when the supply would be restored.
As the court waited for that to be resolved, Steynberg applied to the court to have admitted as exhibits some of the documents he has been referring to during the questioning of Witness 604. The court admitted as exhibits two statements the witness made to the prosecution. One statement is dated July 6 to July 8, 2013. The other statement was made on July 14, 2013 and it explains two diaries that have been attached to it as annexes. The court also admitted Witness 604’s August 11, 2014 affidavit together with the lawyer’s letter accompanying it and the witness’s own handwritten document. The court, however, only marked for identification an investigator’s report and the June 27, 2013 screening notes of investigators of their telephone interview with Witness 604.
The exercise of recording the documents as exhibits ended without a connection with Nairobi being restored. Witness 604 will continue testifying on Wednesday.