William Samoei Ruto, Kenya’s deputy president, and Joshua arap Sang, a Kenyan radio journalist, each face three counts of crimes against humanity for their alleged role in the bloodshed that followed the 2007 presidential election. The charges cover murder, deportation or forcible transfer of a population, and persecution. The case is currently on a scheduled break until November 17. You can follow daily reports on the trial on International Justice Monitor here.
What is currently happening?
The trial chamber has subpoenaed nine witnesses, who had previously provided statements supporting the prosecution’s case, but who then withdrew, claiming that their initial testimony had been false. Some have said they were encouraged to fabricate statements at the behest of the prosecution. All nine were ordered to appear before the court, via a video link from Nairobi. The prosecution is seeking to undermine the credibility of their reversals, against a background of court concerns about witness intimidation in Kenya.
Eight of these witnesses had previously cooperated with the prosecution but withdrew between March and September last year. In each case, they stopped cooperating with the prosecution after their identities were disclosed to the defense as required by court procedures. The ninth witness, Witness 604, stopped cooperating with the prosecution mid-this year.
Right at the start of the trial in September last year, proceedings had to be postponed for a day after all lawyers made their opening statements because the first three prosecution witnesses set to testify withdrew at the last minute.
In the past month, three of the nine witnesses under subpoena have testified from Nairobi. In each instance, the prosecutor applied for the witness to be deemed hostile, allowing the trial lawyers to cross-examine their own witness.
In normal practice, the party calling a witness can only ask open-ended, neutral questions to allow a witness to testify in their own words. If a witness is deemed hostile, it allows the calling party to challenge the witness’s testimony by asking them leading questions. Thus, the prosecution in the Ruto and Sang case has been questioning the hostile witnesses as they would have a defense witness who is expected to contradict the prosecution’s evidence.
What has happened in this trial to-date?
Since opening its case on September 10, 2013, the prosecution has sought to make its case by:
Proving that the alleged crimes took place as charged, using what the ICC calls “crime base” witnesses. The majority of the witnesses who have testified were victims of the violence in the towns and areas described in the charges.
Proving that Ruto and Sang are linked to the alleged crimes as charged. Witness 409, for instance, claimed in several days of testimony that Ruto spoke to his audience in code in Kalenjin at several rallies in the Nandi Hills area allegedly calling them to evict non-Kalenjin from the Rift Valley region. Witness 442 alleged Sang used his show on the Kalenjin radio station, Kass FM, to direct violence against non-Kalenjins.
Witness protection measures
It is hard to assess the strength of all the evidence that might have been given against the two men, owing to periodic closures of the court to the public to protect the identity of witnesses. Most witnesses have testified under court-ordered protective measures. These measures have included the witness being hidden from public view behind a curtain or having their image distorted in the court’s live stream of proceedings online. Where such a witness needs to give information that may identify them to the public, the audio and video transmission of the proceedings has been shut off.
During the course of the Ruto and Sang trial, the court has taken the extreme measure of cutting off the public completely from the proceedings. This has happened twice so far. The first time this happened was when efforts were made on different online platforms to identify the first witness to take the stand. When judges were alerted to that after the witness’s first day of testimony, they then ordered the rest of her testimony to be heard in closed session.