Witness Says He Cannot Recognize Sang’s voice, Never Listened to Kass FM

Witness 637 resumed his testimony before the International Criminal Court (ICC) on Monday and testified the whole day without any problem after he asked to be given a break last week because he was too ill to continue answering questions.

Essa Faal, who represents Deputy President William Samoei Ruto, continued cross-examining the witness, asking him about a meeting in November 2007 during which the witness had told prosecution investigators Ruto was present and attacks against Kikuyus were planned.

Trial Chamber V(a) decided to stop Thursday’s hearing after Witness 637 complained that he was feeling dizzy from medication he had taken earlier in the day. There was no hearing on Friday because it was an ICC holiday. Witness 637 was testifying in the trial of Ruto and former journalist Joshua arap Sang, who each face three counts of crimes against humanity for their alleged roles in the violence that followed the December 2007 presidential poll.

Faal began his questioning of Witness 637 about the November 2007 meeting by reading for him an excerpt of the witness’s interview with prosecution investigators. In the excerpt Faal read, Witness 637 said he saw Ruto give an envelope to someone only identified in open court by pseudonym as person number three. Then the witness told investigators that the car Ruto was in turned while Ruto told person number three that he was going away to plan.

“So Mr. Witness, even if we were to assume that this meeting took place – something that we deny completely – it is not clear that you heard what was said because the car was moving away. Isn’t that right?” asked Faal.

“Yes,” replied Witness 637.

“And, Mr. Witness, you added this bit to this new story because you wanted it to be seen that Ruto was responsible for planning the violence, isn’t it?” Faal continued.

“Yes,” the witness answered.

Faal then asked Witness 637 about his statement that Raila Odinga had said in the lead-up to the December 2007 general elections that if the Orange Democratic Movement (ODM) party lost the poll, there would be a bloodbath in the country. Odinga was the leader of ODM and the main challenger to the then incumbent President Mwai Kibaki. At that time, Ruto was one of ODM’s top leaders.

Ruto’s lawyer played a video for the witness of a rally Witness 637 had said he was present at and heard Odinga give his warning about bloodshed. The video was played in private session because the location of the rally could identify the witness.

“Mr. Witness, you agree that in that video there is nothing that is shown which suggests that Mr. Odinga said there will be a bloodbath in Kenya if he did not win, correct?” asked Faal.

“Yes, in the clip that was shown he did not state that,” replied Witness 637.

“I put it to you Mr. Witness that, that was never said at all. If he did, it would have been reported,” continued Faal.

“Yes, it is true. It would have been reported,” the witness answered.

“So you fabricated it?” Faal asked.

“These are comments that were shown and broadcast repeatedly in Kenya,” responded Witness 637, repeating his testimony in court from September 30. At that time he had said that Odinga’s statement about bloodshed made at the rally had been also reported in the media.

“On this particular occasion, that was never said?” Faal continued.

“In the clip that I saw he did not say that,” said the witness.

When Faal concluded his cross-examination of the witness, the lawyer for Sang began his cross-examination. Joseph Kipchumba Kigen-Katwa asked Witness 637 whether he listened to Kass FM, a radio station that broadcasts in Kalenjin that Sang worked for during the period of the post-election violence in Kenya. The witness said no.

“And Mr. Witness, would you be in a position to recognize Mr. Sang’s voice?” asked Kigen-Katwa.

“I have never listened to him, so I cannot recognize his voice,” replied Witness 637.

Kigen-Katwa then referred the witness to hand-written notes he had made and given to the prosecution.

“In those notes, Mr. Witness, you dedicated four pages to Mr. Sang in the period of 20th December 2007 and 6th January 2008. All those allegations against Mr. Sang during that period, are they the truth of what you heard Mr. Sang say [on air]?” Kigen-Katwa questioned.

“It is false. It is information from number 19. I never listened to Kass FM,” replied Witness 637. Number 19 in the witness’s response is an organization that was only referred to by pseudonym in open court. In testimony on September 30, the witness had said that three individuals from that organization had coached him on what to tell prosecution investigators.

Kigen-Katwa then played the witness three audio recordings of Sang’s program on Kass FM from different dates between December 2007 and February 2008. Kigen-Katwa asked Witness 637 to summarize what Sang had said because the witness understands Kalenjin. Kigen-Katwa then read into the record excerpts from an English translation of the audio recordings.

He applied for the audio recordings to be admitted into evidence, but his request was denied because the recordings have not been authenticated and the witness had stated he never listened to Kass FM and had no recollection of the programs. Trial Chamber V(a) ordered the recordings be marked for identification. This means the recordings form part of the record of the court, but they will not be referred to when lawyers make submissions on the evidence in the case.

Trial lawyer Alice Zago said she did not wish to reexamine Witness 637 when Kigen-Katwa concluded his cross-examination of the witness. Presiding Judge Chile Eboe-Osuji then told the witness he was discharged from court and from his subpoena. The judge declared that Monday’s proceedings marked the end of the current session of hearings in the Ruto and Sang trial that began on September 1. This was the longest session of hearings since the trial began last year in September.

The hearings are scheduled to resume on November 17 and run until December 12. Judge Eboe-Osuji announced these dates on September 23 after lawyers had inquired about the schedule for the next session of hearings.

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