Witness 637 is Declared a Hostile Prosecution Witness

The presiding judge of Trial Chamber V(a) said Witness 637 sought medical attention on Wednesday, which is why he was absent from court.

Judge Chile Eboe-Osuji did not give any other details when trial resumed on Thursday in the International Criminal Court (ICC) case concerning Deputy President William Samoei Ruto and former journalist Joshua arap Sang. The judge also explained that the chamber did not deliver a ruling it had said it would on Wednesday. The chamber thought it would be better to announce the ruling on an application the prosecution made to have witness 637 declared hostile once the witness was available to testify.

Trial Chamber V(a) decided on Thursday to declare Witness 637 a hostile prosecution witness. Judge Eboe-Osuji said the chamber made the decision because it is “satisfied that the circumstances of this witness’s testimony thus far do satisfy the test of consistent and systematic divergence between testimony of the witness and the witness’s previous statement thus warranting the declaration of hostility.” On Wednesday, trial lawyer Alice Zago applied to have Witness 637 declared hostile, and the defense lawyers for Ruto and Sang partially supported her application.

Witness 637 is now the fourth prosecution witness that Trial Chamber V(a) has declared hostile. The immediate previous three witnesses were also declared hostile. Those three witnesses had been summoned to appear before the chamber because they had stopped cooperating with the prosecution.

By declaring Witness 637 a hostile prosecution witness, Trial Chamber V(a) allowed Zago to cross-examine her own witness. The normal practice is that when the prosecution calls a witness in support of their case, they are required to ask the witness open-ended or neutral questions so that the witness can present their evidence in their own words.

However, if a prosecution witness is declared hostile this allows the prosecution to challenge their testimony by putting propositions to them or asking them leading questions. In essence, the prosecution would be questioning them as they would a defense witness who is expected to contradict the prosecution’s evidence. It is not only a prosecution witness who can be declared to be hostile. A defense witness can also be declared to be hostile for similar reasons and with the same effect that the defense will challenge their testimony in court.

Witness 637 has been testifying since Monday in trial of Ruto and Sang, who each face three counts of crimes against humanity for their alleged roles in the violence that followed the December 2007 presidential poll.

After the chamber delivered its ruling, Zago asked the witness whether when he was being coached by the three people of organization 19 in September 2011, he knew that there was a third person who was facing charges in the case, Henry Kosgey. Witness 637 said he knew this.

“And did organization 19 ask you to implicate him as well?” asked Zago.

“No, they did not tell me anything about that name,” answered Witness 637, referring to Kosgey. In September 2011, Kosgey was the chairman of the Orange Democratic Movement party and a cabinet minister.

“Do you know why not Mr Kosgey, and only Mr Ruto and Mr Sang?” continued Zago.

“I do not. Organization 19 would tell you more about that,” replied the witness.

Essa Faal, who represents Ruto, then began his cross-examination of the witness. Faal asked him about an organization the witness told prosecution investigators he was a member of. Faal challenged the witness that he gave the investigators names of three organizations, but they were just different names of the same organization. Witness 637 explained that two organizations were merged to form the third organization.

The three different names were not given in open court because it is considered information that could identify the witness to the public. Instead, Faal and the witness used pseudonyms provided in a protection information sheet when referring to the three names in open court. The use of pseudonyms during the open sessions is one of the measures the court has ordered to protect the identity of the witness.

Faal then produced a letter from the NGO Coordination Board written in April this year that stated none of the organizations were registered. The witness told the court that officials of the organization had applied for registration in a location near where they lived, and they did not know whether that application was passed on to the board’s headquarters in Nairobi. Faal told the court that a letter from the local office the witness referred to also stated that none of those organizations were registered. Witness 637 said that not all three organizations were registered separately. He said they registered the organization under a single name. Faal said that the name he claimed the organization was registered under was heard for the first time in court when the witness began his testimony this week. Witness 637 insisted that that was the case.

“Mr. Witness, the simple truth is that you are making this up as you go along. These organizations do not exist. Do you agree?” Faal asked.

“I’ll say the following: In 2008 these organizations disintegrated. Before that they existed,” replied the witness.

Faal then asked the witness about his statement that during the 2005 referendum campaigns, Ruto had stated that a proposed constitution to replace the one existing at the time was designed to entrench the Kikuyu in power and advocated that the Kikuyu should be removed from Kenya. Faal showed the witness a news clip of a rally from that time that showed Uhuru Kenyatta campaigning with Ruto and other leaders. He asked the witness whether Kenyatta would be part of a group that would call for the removal of the Kikuyu from Kenya. Witness 637 said no. Faal also asked the witness what Ruto said in the news clip. The witness said that Ruto called for people to live in peace and denounced tribalism.

At the time of the 2005 referendum campaigns Kenyatta was the leader of the opposition in parliament. Today he is Kenya’s president. He also faces charges in a separate case at the ICC for his alleged role in the bloodshed that occurred in Kenya between December 2007 and February 2008.

After the lunch break, the witness complained that he had taken medicine in the morning and was feeling dizzy, so he hoped the court would have only one session on Thursday afternoon. When the court resumed for a second afternoon session, the witness declined to answer any question from Faal saying he had a headache and was feeling dizzy. Presiding Judge Eboe-Osuji conferred with his fellow judges Olga Herrera Carbuccia and Robert Fremr. Judge Eboe-Osuji then announced the court would adjourn until Monday, and the ICC Victims and Witnesses Unit would have a doctor look at the witness in the meantime.


  1. Now I know.

    When witnesses recant their earlier statements, they are doing you a favor.

    If by chance you insist and force them to testify, you are simply jumping from frying pan to fire, literally.

  2. You got that right Kip. I think court should also look for a better word, because the witness is being honest (by recanting lies) but is branded ‘warlike’. What they are actually saying to the witness is you either stick to your statement or you become an enemy.

  3. Haaa haaaa then the witness should tell us why the name of Koskei was not mentioned.That is one of the reason why he was declared hostile.Why only Ruto and Sang?.

    1. Recanting a statement is never a joke. Some folks are always quick to read mischief/inducement.

      But wait a minute… Judas Iscariot did recant his act the hard way… he picked up a cheap thin rope, and weighed himself!

  4. This is very interesting…. A witness is produced by the prosecution, the witness is asked to record a statement, the eswitness then recasts before the trial, he witness then declines to testify – in court – in line with the statement given to the prosecution (not to the court), the witness is then questioned in court about the statement he gave to the prosecution, he then says that that statement is false and coerced, the prosecution then asks the court to call the witness hostile to the prosecution and allow them to interrogate the witnesses, the witness gives information as he recalls, the court says it will not consider the information given by the witness because this information is not properly before the court and is unsubstantiated or new information or hostile to the prosecution, then the defense has to question this same witness who has information – not to be considered by the court…. nor can the defense rely on information produced by a witness hostile to the prosecution!

    In all this, new claims are being allowed to be made to the accused without evidence or substantiating. How low should this go before the case is found without merit….I worry for the OTP.

    This case can completely discredit the OTP and poor Bensouda who had this case handed to her by her predecessor and investigators.

  5. Big shame in the face of learned friends the world over watching the lowest of law practices.even the village elders are asking about the difference between the I cc, and other corrupt courts in counties.

    1. As I said earlier, the cases should be fodder for those given the power to read and do all that appertains…

      This in the sense that dissecting war crimes to apportion blame on basis of criminal culpability to persons not in charge of a polity accused is mind boggling.

      Over to you law scholars.

  6. Has Kenya people we are see that these are not good to take the people who are not have any case ,,

  7. It all started as a contest for the sit in the hill but slowly degenerated into cash cow for those who might have no regard to the Biblical command DO NOT BEAR FALLS WITNESS AGAINEST YOUR NEIGHBOUR and political scores settlement. It seems Koskei was strategically used to disguise the real architects of the Ocampo Six List Case WHY? It is a pity the word accepted to be drown to such unethical circus.

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