A lawyer for a witness in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang has applied to the International Criminal Court (ICC) for a 21-day adjournment to allow the witness additional time to prepare for his testimony.
Kenyan lawyer Gregory Mutai appeared for the witness via video link from Nairobi, Kenya on Monday in response to a summons Trial Chamber V(a) had issued to the witness to appear before it and testify. The witness was not named nor was he referred to by pseudonym, as is the practice of the court.
The summons issued to the witness flows from a decision Trial Chamber V(a) made ordering the Kenyan government to compel a total of nine witnesses to appear before it in Nairobi via video link. The decision concerning eight of those witnesses was made in April. The decision concerning the ninth witness was made in June. The Kenyan government and defense lawyers have appealed that decision. The Appeals Chamber has not yet made a decision on the applications.
Mutai made the application for an adjournment when he was invited by the court to raise preliminary issues. His application and the subsequent responses from the prosecution, counsel representing victims, defense lawyers, and representatives of the Registry took the whole day.
The day’s proceedings began in private session. However, during later submissions and comments in court it was evident that the witness appeared before Trial Chamber V(a) via video link from Nairobi. During those submissions and comments, it was also clear that the witness was asked to confirm to the court in private session that Gregory Mutai was his lawyer and identify him.
The location of where the witness and his lawyer appeared before the court has not been made public. Similarly, the identity of the witness has not been made public, though the judges and all lawyers involved know his identity. Ruto was present at the ICC in The Hague. This is following a decision the court made that he should be present whenever his trial resumes after the court has been on recess. The ICC went on summer recess on July 18 and resumed work on August 11. Monday was the first time the trial of Ruto and Sang had resumed since that recess.
Mutai told the court there were five grounds he was requesting an adjournment. The first he said was because his client had been diagnosed with depression, and the doctor had recommended the witness should not undertake any stressful activity. Mutai also said he had not seen the statements the witness made to the prosecutor and therefore was not able to advise his client on how to conduct his testimony. He said this was important because his client had sworn an affidavit more recently recanting his statements to the prosecution. Mutai said linked to this is the fact that his application to be added to the list of lawyers accepted to appear before the ICC had not been processed.
The third reason Mutai gave for requesting an adjournment was that his client wanted to appoint a senior counsel to be his lead lawyer, and this would take time because the lawyer concerned would also have to apply to be added to the list of lawyers allowed to appear before the ICC. The fourth reason Mutai gave was that the witness wanted to get some records to present as part of his testimony. The records that the witness wished to present in court were for his mobile phone number and mobile money transactions. Mutai said the fifth reason was the treatment by staff of the Office of the Prosecutor, who only returned his client’s passport to him on Monday.
Broadly, the prosecution, the lawyer for victims, and counsel for the defense were in agreement that a 21-day adjournment was too long. Ruto’s lead lawyer, Karim Khan, favored a short adjournment, arguing the trial should start Tuesday morning. Orchlon Narantsetseg, who is acting on behalf of the victims, also said the trial hearing should begin within the shortest time possible. Senior trial lawyer Anton Steynberg said the prosecution was amenable to an adjournment not going beyond Thursday this week. Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, said given the reasons Mutai had advanced the court should consider giving him a 14-day adjournment.
Presiding Judge Chile Eboe-Osuji asked Steynberg whether adjourning the hearing of the witness would affect the line-up of witnesses the prosecution had. Steynberg said it would because there was another witness who was expected to start testifying this coming Friday.
Judge Eboe-Osuji also asked Esteban Peralta Losilla, Chief of the ICC Counsel Support Section, whether they issued a provisional listing for lawyers allowed to appear before the court. Losilla replied this was a common practice. He also said in the case of Mutai, the Registry had advised him on Wednesday on the procedure and requirements for such an application, but they had not received his application as of Monday. Mutai told the court he had filed his application by the agreed time of close of business on Thursday. He said it was possible his application was not received because of the volume of attachments it had, but he told the court he had not received a failed delivery message to that effect.
The issue of the mental health of the witness was the subject of some contestation. Steynberg told the court that during the prosecution’s interaction with the witness in early August, the issue did not come up. He said it only came up last week when Mutai sent a medical report to all parties.
Before the court went for its lunch break, Judge Eboe-Osuji consulted with his fellow judges, Olga Herrera Carbuccia and Robert Fremr, on the issue. He then said they ordered that a doctor and psychologist chosen by the Victims and Witnesses Unit should see the witness and make their own assessment. The judges also ordered the witness be provided with a copy of his statement, but not his lawyer. Towards the end of the day, the judges also ordered that Mutai give the Registry staff in Nairobi hard copies of his application to be added to the list of lawyers allowed to appear before the court as well as the accompanying attachments. In addition, they said Mutai should email the application again to the ICC Registry in The Hague.
The court will continue hearing submissions on the matter on Tuesday.