Appeals Chamber Upholds Trial Judges’ Decision to Compel Witnesses to Testify in Ruto and Sang Trial

The Appeals Chamber of the International Criminal Court (ICC) has upheld the decision of a lower chamber to summon witnesses who are reluctant to testify in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

In an unanimous decision announced on Thursday, the Appeals Chamber also upheld the decision of Trial Chamber V(a) to compel those witnesses to testify so long as they give their testimony in Kenya. Presiding Judge Akua Kuenyehia, while reading the summary of the Appeals Chamber’s decision in open court, noted that a trial chamber could compel witnesses to testify as long as they testified in their country of residence.

Judge Kuenyehia said the Appeals Chamber reached this conclusion based on the drafting history of the statute that created the ICC. She said the Appeals Chamber concluded that countries involved in those negotiations considered it would be wrong if a witness was compelled to testify in The Hague, where the ICC sits, if that meant international travel.

The Appeals Chamber also upheld the decision of Trial Chamber V(a) that the Kenyan government, where necessary, should compel those witnesses to testify. The Appeals Chamber made its decision after receiving applications from lawyers representing Ruto and Sang challenging the trial chamber’s decision. The prosecution challenged the defense’s application, and the Kenyan government filed submissions as a friend of the court supporting the position taken by the defense.

“In sum, the Appeals Chamber finds no error in the Trial Chamber’s finding that Kenya is obliged to cooperate in compelling the appearance of witnesses before the court either by sitting in situ [in other words, in Kenya] or by way of video link,” said Judge Kuenyehia.

Ruto and Sang are on trial on three counts of crimes against humanity for their alleged roles in violence that erupted after the December 2007 presidential election. Their trial began last year in September.

The Appeals Chamber is the highest chamber in the ICC. This means the defense have no further opportunity for appeal. Thursday’s decision then means that Trial Chamber V(a) can continue hearing testimony from prosecution witnesses who developed cold feet and declined to appear in court.

So far the chamber has heard the testimony of four such witnesses who have appeared before it via video link from an undisclosed location in Nairobi. These witnesses – Witness 604, Witness 495, Witness 516, and Witness 637 – testified between September 4 and October 6.

Trial Chamber V(a) made the initial majority decision to summon these prosecution witnesses in April after the prosecution applied to it to do so because eight of its witnesses had stopped cooperating with it last year. The lawyers for the defense and victims made submissions against and in support of the prosecution’s application, which the chamber took into consideration before making its decision. The chamber made a second unanimous decision in June to summon a ninth witness following another prosecution application.

The prosecution wanted the reluctant witnesses to testify because they believe the witnesses’ change of heart was the result of bribery or intimidation leading them to recanting their statements to the prosecution and declining to testify.


    1. Persuaded to recant?, these are rational humans just like anyone else, you included.

      If you think they have been persuaded now, what makes you believe they were not induced and persuaded to give false testimony in the first place?

  1. The prosecution should consider both side of the coin if they are working for justice. What about the bribery given to witnesses so as to accept and sign the false testimony as theirs?

  2. The compelled witnesses are now speaking the truth that they were induced by the civil societies the Office of the prosecutor and some NGOS to give false testimonies against our brothers whom we know they are innocent as has now been vindicated by the persons who accused them who else can tell the world what happened in Kenya in 2007/2008 apart from those who were in charge of the country at the time? Forcing witnesses has not helped the prosecutor in any way instead it has shown that there was no proper investigations carried out in Kenya on the cases falsehoods from non victims were collected and handed over to icc with political motives.

  3. Are the “investigators” and he “coaches” getting away with these allegations against them? There have been all kinds of allegations about witness tampering from both the prosecution and the defences.
    From where I sit, the parties better clean the slate and start doing a proper job. Anything doing this would be an injustice to all concerned.

  4. As dreadful as the Kenyan post ele tion violence was, it was nothing in comparison to the attrocities visited on South African through its official apartheid policy. The scope of inhumanity that spanned over a century of voilence, displacement of natives, imprisonments of the Mandelas and Sisulus and killings of the Bikos of this world, should shame Kenyan that we lacked leardership to implement the truth and reconcilliation commission and and draling with ICC, wasting limited nations resourses jetting our presidents to the Hague accompanied by scores of mps and security. What an unfortunate state of affairs compared to how South Africa resolved its sad history.

  5. dont fake evidence with intent nailing our beloved leader william ruto, what we heard from those testifying are enough to terninate this case. nobody was persuaded or force to riot then, itwas spontenious, citizens were protesting for bungled elections. and if at all icc wants peace in future here, let them come for civic education to us the common men , civic on patience not to riot if rights are forcefully taken away from them, not to burn and slaughter fello citizens. to say ruto incited is the worst, that guy was so soo busy in nairobi helping in vote tallying, he is for peace, a clip was played to gallary awhile ago where he (ruto) asked raila to change statement he made from mass demos to peaceful demonstration. terminate the case, kenyans requires him to concentrate in nation building.

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