ICC judges ask Kenya to present eight missing Ruto witnesses

Deputy President William Ruto and radio journalist Joshua Sang at The Hague. ICC judges have allowed the prosecution to have the Government compel witnesses to testify. [PHOTO: FILE/STANDARD]

By FELIX OLICK and WAHOME THUKU

Kenya: The case against Deputy President William Ruto and radio journalist Joshua Sang has taken a dramatic twist following a decision to compel eight witnesses who had withdrawn their evidence to testify.

This is after the International Criminal Court where the two are facing crimes against humanity charges charges gave orders that the Kenyan government ensures that the witnesses give evidence.

These are the witnesses whom the ICC prosecution argues hold the evidence that properly incriminates the accused. The ICC Prosecutor Fatou Bensouda has described them as the ‘insiders’.

The witnesses had declined to testify and withdrew their testimony at different times.

The three judges of the Trial Chamber V (a) yesterday allowed an application by the prosecution to have the Kenyan authorities forced to present the witnesses using all means available under the laws of Kenya.

The chamber granted the application for witnesses number 15,16, 336, 397, 516, 524, 495 and 323 to be summoned, after being convinced that their evidence would be critical.

Uhuru case

The eight will either testify through video-link or give evidence from a location within Kenya on a date and time to be determined and communicated to them by the prosecutor.

The Government is required to communicate to them the decision of the court, and to compel them to attend the proceedings to give evidence. It is also required to make appropriate arrangements for the security of the witnesses until they appear and complete their testimonies before the chamber.

And that decision could have an impact in the case against President Uhuru Kenyatta if similar orders are made against witnesses who have also withdrawn or declined to give evidence against him.

Ms Bensouda insists that the witnesses are crucial in proving her charges saying for example that Witness P0015 has evidence that Ruto organised and bankrolled the violence that engulfed the Rift Valley.

“According to the witness, Mr Ruto was present and participated in 11 meetings to prepare for the attacks, during which the participants discussed procurement of firearms, the selection of field commanders and the arrangement of finances and logistics.P-0015 also described the Network that Ruto utilised to commit the crimes,” she told the judges.

The prosecutor claims the witnesses, all of whom were under the protection of the court, gave statements to the prosecution variously describing pre-election meetings they attended — some at Ruto’s home — where post-election violence was planned and participants, including Ruto, distributed money and weapons.

But in his response at The Hague on February 15, this year Attorney General Githu Muigai told the judges that the Kenyan authorities could not force witnesses to give evidence.

The witnesses in question have previously given statements to the OTP, but they have since refused to come to The Hague to testify.

Muigai explained that Kenya’s domestic laws, in particular the International Crimes Act under which the Rome Statute is applied, enable the Government to serve witnesses with summons but cannot force them to testify. “These persons reserve the right to voluntarily comply or refuse to do so,” he said.

The prosecution responded that it only required the Government’s assistance in facilitating the witness’s testimony via video-link from Kenya, and not their transfer to The Hague.

Determination of truth

Muigai said since the seven witnesses were under ICC protection measures, the Kenyan authorities did not know who they were.

He said the Kenyan authorities had no objections to the witnesses providing testimony in Nairobi, but were unable to force them to do so.

The chamber ruled that it had powers to compel the witnesses and that it could oblige the Government to serve summonses upon the witnesses as a way of State co-operation with the court.

“There are no provisions in Kenya’s domestic laws that prohibit this kind of co-operation,” the judges observed. “The prosecution has justified the issuance of the summonses to compel the appearance of the eight witnesses”.

The chamber also rejected an application by the Government to order the prosecution to disclose evidence in their possession which would show the reasons why the witnesses had declined to testify.

“The chamber is persuaded that the eight witnesses’ anticipated testimonies are potentially necessary for the determination of the truth. Each of these witnesses may provide important testimony on the crimes charged and the individual criminal responsibility of the accused.

Dismissed position

In particular the judges said the evidence could prove the allegations that Ruto was present and participated in the planning meetings, supported and financed the PEV.

The evidence could also provide information on the allegations that he made inciting statements at the locations where violence occurred, also evidence of the involvement of named members of the network behind the chaos and also how Sang’s radio show allegedly supported and incited the PEV.

The chamber further rejected arguments by the defence team that the potential hostility of the witnesses limited the value of their anticipated testimony.

“Until any witness has been given an opportunity to take the stand, take the oath and take questions in examination-in-chief, it would be speculative to declare the witness as hostile. Even then, there is no known wisdom that hostile witnesses are incapable of testifying to the truth under oath.”

The judges also dismissed a position that witness 15 was unfit to testify due to poor health.

The judges said they were also persuaded that summonses were necessary to obtain the testimony of the witnesses. “The prosecution has detailed reasonable attempts to obtain the voluntary co-operation of the eight witnesses, and has been unsuccessful,” they said.