Trial judges at the International Criminal Court (ICC) have issued a subpoena for Witness 727 to testify via video link, starting March 23, in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Trial Chamber V(a) on Tuesday ordered the Registry to transmit the summons it has issued, and other documents, to the country where Witness 727 is residing. The chamber asked the Registry to report to it by March 6 on the progress in the arrangements for Witness 727 to testify before the ICC.
The chamber made Tuesday’s unanimous decision after considering an application the prosecution made on December 17, 2014 for the summons to be issued. Before making its decision the chamber also considered written responses to the prosecution’s application from Ruto’s and Sang’s lawyers. The judges called a status conference on January 22 to hear further submissions on the matter. The lawyer for victims made submissions during this status conference.
The written submissions were filed under confidential cover, making them unavailable to the public. The status conference was closed off to the public. The chamber makes reference to them in the redacted version of their decision that was posted on the ICC’s website on Tuesday.
Trial Chamber V(a) said it considered four options on how to handle the testimony of Witness 727, which the prosecution said was important for the chamber to hear. Most of the options were redacted but it is clear that one of them was the witness testifying via video link from the country he is residing in. What is also clear is that even though that country has ratified the ICC’s founding law, the Rome Statute, it has not passed legislation to anchor the Rome Statue into its domestic law.
Witness 727, through what the chamber refers to as a national lawyer, set conditions before testifying at the ICC. The decision also noted that the witness gave conditions for his testimony despite the ICC already relocating him and his family to the undisclosed country for the specific purpose of ensuring his security to testify. The conditions the witness gave included refusing to testify if his national lawyer did not represent him.
Apart from these conditions, the judges noted that the prosecution said there was no valid reason the witness had given for not testifying. If there are other details about the circumstances that led to the witness being reluctant to testify, they would be in the prosecution’s application, which remains confidential. Similarly, the transcript of the status conference during which some of the details may have been discussed is also confidential.
On March 23, when Witness 727 takes the stand, he will be the sixth witness to appear under summons from the chamber and testify via video-link from an undisclosed location. Trial Chamber V(a) issued its first decision to summon witnesses in April last year. The April 2014 decision concerned eight witnesses who were reluctant to testify.
In its first application last year, the prosecution said the eight witnesses had been cooperative until the prosecution disclosed their identities to the defense, as required by a ruling of the chamber and ICC rules. The defense denied that the disclosures were the reason the witnesses became reluctant to testify. The defense instead said the witnesses may have become scared of giving testimony in court because their false accounts would be exposed.
In Tuesday’s decision, the chamber declined to allow Witness 727’s national lawyer to represent the witness in the proceedings. The chamber instead ordered the Registry to appoint a duty counsel for the witness. The role of the duty counsel will be to advise the witness where his testimony may incriminate him. The counsel will have no role in advising the witness on other areas of his testimony.
If Witness 727 testifies in March then he will be the ninth witness to do so with counsel. Three of those have testified with Kenyan lawyers acting for them. The rest have had court-appointed lawyers, or duty counsel, act on their behalf. In all cases, the lawyers’ role has been restricted to advising the witnesses on matters of self-incrimination.
The question of whether Witness 727 can be represented by a lawyer of his choice was also the subject of a separate decision made by the chamber. The decision was made under confidential cover on January 12, and a redacted version for the public was posted on the ICC’s website.
This became an issue for the chamber because Witness 727’s lawyer of choice was also representing another witness. The judges considered whether there would be a conflict of interest if the same lawyer represented two witnesses at the Ruto and Sang trial. They deliberated on the matter because the lawyer in question had stated that he could relay confidential information about one witness, or information given by that witness to another witness, if he considered it important. The judges ruled that the lawyer in question could not represent any of the witnesses when they testify at the ICC.