For the fifth time, Trial Chamber V(a) has declared a prosecution witness to be hostile in the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
The chamber made the decision to declare Witness 743 hostile on Tuesday afternoon after hearing a prosecution application on the matter and observations from the defense and lawyer for victims. The submissions were made in private session, but the chamber’s decision was made in open court.
Ruto and Sang each face three counts of crimes against humanity for their alleged roles in the violence that erupted after the December 2007 presidential poll.
Presiding Judge Chile Eboe-Osuji said that based on the testimony the court had heard on Monday and Tuesday, it was clear that Witness 743 had deliberately or systematically departed in whole or in part from the statements he made to the prosecution in a series of interviews with investigators. This, Judge Eboe-Osuji said, was the third of several factors the chamber had said was necessary when considering whether to declare a witness hostile in a ruling in September last year.
“Having considered the matter the chamber is satisfied the third factor has been met, and the prosecution’s application is granted,” Judge Eboe-Osuji said.
As a preamble to the decision, Judge Eboe-Osuji gave a definition of a hostile witness.
“A hostile witness is a witness who is not desirous of telling the truth to the court at the instance of the calling party,” said the judge.
The declaration means senior trial lawyer Anton Steynberg, who has been questioning Witness 743, can now cross-examine him on his testimony against his statement to the prosecution and explore any inconsistencies between the two. If the witness had not been declared hostile, Steynberg would have been required to ask him open-ended questions, and he could not challenge the witness on any contradictions between his testimony and previous statements to the prosecution.
In September and October last year, the chamber declared four other prosecution witnesses hostile. Some of them had submitted affidavits through their lawyers recanting part or all of their statements to the prosecution. Others simply recanted their earlier statements to prosecution during their testimony in court. The four were part of nine witnesses the prosecution had applied to be compelled to testify before the ICC after they had either formally recanted their statements or simply stopped communicating with the prosecution. It is unclear whether Witness 743 is one of the nine witnesses because his pseudonym is different from those used in the prosecution applications last year.
Much of Tuesday’s hearing was held in private session before and after the chamber declared Witness 743 hostile. Before that happened, Steynberg had asked the witness about supporters of the Orange Democratic Movement party in the town of Turbo going around threatening the Kikuyu in the area that they should prepare to leave. According to the witness’s testimony this happened in October 2007.
Witness 743 said the youth were transported in a tractor and pickup. He said he knew the owner of the pickup by his nickname, Tumaini. He said he could not remember who owned the tractor. Steynberg then asked the court’s permission to be allowed to refresh the witness’s memory by showing him his earlier statements to the prosecution. After re-reading a page in his statement to the prosecution made between July 10 and 14, 2010, Witness 743 said the owner of the tractor was person number 17 in the protected information sheet.
Steynberg then moved on to ask Witness 743 whether he had attended any meetings on December 14, 2007. The witness said he did not attend any meetings, except in the evening when Ruto was addressing supporters. Steynberg then asked to be allowed to confront the witness with his statement to the prosecution on the matter. This was contested by Shyamala Alagendra, Ruto’s lawyer. Judge Eboe-Osuji ruled that Steynberg should first use the statement to refresh the witness’s memory. When that was done, the witness said he did not attend any meetings on that day. The rest of the questioning took place in private session.
The court remained in private session throughout the rest of the morning and until the chamber made its decision to declare Witness 743 hostile in the afternoon. After the court made its decision, the hearing returned to private session. Part of the reason some of the hearings have been held in private session is because some of Witness 743’s testimony is self-incriminating, which is why he has a lawyer whose role is to advise him whenever the issue of self-incrimination arises.
At the start of Tuesday’s proceedings, the trial chamber also granted an application by Karim Khan, Ruto’s lead lawyer, allowing Ruto to be excused from the hearings on Thursday and Friday to attend the World Economic Forum in Davos, Switzerland. Judge Eboe-Osuji said Ruto would be expected to be in court on Monday and Tuesday next week.
Witness 743 will continue testifying on Wednesday.