A lawyer for Deputy President William Samoei Ruto asked the International Criminal Court (ICC) to suspend the prosecution’s questioning of Witness 743 until they investigate his claims that all witnesses whose statements were relied on to confirm the charges against Ruto had given false evidence.
Trial Chamber V(a) declined the application on Wednesday, adding the defense can revisit the application when it is their turn to question the witness. An investigator’s report the prosecution disclosed to the defense on Tuesday evening, after the day’s hearing had ended, prompted the application by Ruto’s lawyer, Shyamala Alagendra.
She told the chamber that the investigator’s report detailed a conversation a prosecution investigator had with Witness 743 in 2013 during which he made the allegation about the witnesses upon whose statements the charges against Ruto were confirmed. Joseph Kipchumba Kigen-Katwa, the lead lawyer for former journalist Joshua arap Sang, said he supported Alagendra’s application.
In a majority decision, Pre-Trial Chamber II confirmed the charges against Ruto and Sang in January 2012. They each face three counts of crimes against humanity for their alleged roles in the violence that nearly tore apart Kenya after the December 2007 presidential poll.
Senior trial lawyer Anton Steynberg said the prosecution opposed the application and cross-examination of Witness 743 would show him to be “a thoroughly unreliable and incredible” witness. Steynberg also said the witness never said he knew that the confirmation witnesses had given false evidence. Steynberg explained that the witness told the investigator in 2013 that he had information on witness interference but did not give any information to the investigator at the time of the interview.
“Mr. Steynberg, you said this witness is quote a thoroughly unreliable and incredible witness end quote. This is a witness you called to testify. Beyond the merits of the application of Ms. Alagendra you will of course tell us why we should continue to listen to this witness if this is how you feel,” said Presiding Judge Chile Eboe-Osuji.
Steynberg responded that the witness had made allegations that go to the heart of the integrity of the prosecution’s case.
“In that regard it’s necessary for this witness to come and testify in order to establish whether or not the version he gave us originally is the truth or whether his subsequent recantation and allegations against the prosecution is the truth. Or ultimately whether neither of these versions is to be believed because the witness has been too discredited,” said Steynberg.
It is after this that Judge Eboe-Osuji issued the chamber’s decision on the matter.
The rest of the day’s hearing was conducted in private session, except for when Steynberg applied to be admitted into evidence three statements Witness 743 gave to the prosecution and transcripts of recordings of his interviews with prosecution investigators. The chamber ordered the documents be admitted into evidence only for purposes of impeaching the witness and not for their truth.
Witness 743 will continue testifying on Thursday.