The prosecution has asked the International Criminal Court (ICC) to declare Witness 637 a hostile prosecution witness, and defense lawyers for Deputy President William Samoei Ruto and former journalist Joshua arap Sang have said they support the application partially.
Trial lawyer Alice Zago made the application on Wednesday after Trial Chamber V(a) began proceedings about 50 minutes late. Presiding Judge Chile Eboe-Osuji explained that the proceedings started late “due to unforeseen events and the predisposition of the witness.”
He said the Victims and Witnesses Unit was “seized of the situation and are monitoring it and will appraise the chamber as the need arises.” Witness 637 was absent from the video link from an undisclosed location in Nairobi. His lawyer, Gregory Mutai, was present in the transmission room in Nairobi, and the chamber noted his presence on the record.
Judge Eboe-Osuji then said that while the issue of the witness is being dealt with the chamber could deal with related issues. This is when Zago made the application to have Witness 637 declared hostile. Both defense teams said they supported the application only to the extent they accept that in his testimony in court over the past two days Witness 637 had departed significantly from his previous statement to the prosecution.
Witness 637 had testified on Monday and Tuesday in the trial of Ruto and Sang, who each face three counts of crimes against humanity for their alleged roles in the bloodbath that followed the December 2007 presidential poll.
On the matter of whether to declare the witness hostile, Zago told the chamber Witness 637 had “deliberately and systematically” departed from a statement he made to the prosecution in June 2012. She said the witness had also provided the prosecution with an affidavit recanting his statement to the prosecution.
“He has resiled totally from any criminal aspect contained in those statements. The witness has been unable to provide a credible reason why he has departed from those statements,” said Zago. She also told the chamber the witness had made allegations against staff of the Office of the Prosecutor.
“And for all these reasons the prosecution believes the witness should be declared hostile and the prosecution be allowed to cross-examine the witness,” Zago said. She also informed the chamber that the defense supported the prosecution’s application.
Essa Faal, who represents Ruto, said Zago’s submission was correct, but he clarified that this was only on the basis that the witness, “has significantly departed from the previous information and we do not necessarily subscribe to some of the other views described by the prosecution.”
Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, said he took a similar position on the matter.
“Our agreement is based on the fact that the witness has departed significantly from his statement,” said Kigen-Katwa.
Zago also asked the chamber to enter into evidence the witness’s affidavit. Faal opposed this, arguing that the prosecution only got the witness to confirm his signature on the affidavit.
“We notice that the witness has said he cannot read and write well in English. There is no paragraph in this affidavit suggesting that the contents had been read to the witness in a language he understands,” said Faal. Witness 637 has been testifying in Swahili with interpreters translating his testimony into English and French, the working languages of the ICC.
“In view of the deficiency in this affidavit we suggest that it would be premature for the prosecution to put this affidavit in evidence because the proper foundation has not been laid,” said Faal.
Kigen-Katwa said he shared the same view as the Ruto defense. He also told the chamber that he was willing to reconsider his position if the witness is asked to confirm the contents of the statement. Judge Eboe-Osuji said the affidavit would be marked for identification, which means it will be in the court’s record but it will not be evidence that lawyers can argue on in their final submissions.
After hearing all sides on the issue of the witness being declared hostile, Judge Eboe-Osuji said the chamber would retreat to consider its decision. He said the court would resume at noon The Hague time. That did not happen. Trial Chamber V(a) did not sit again on Wednesday. It is unclear what has happened.