Allow us to appeal against forced testimony, Ruto, Sang urge ICC judges

By Felix Olick

Nairobi, Kenya: Deputy President William Ruto and his co-accused Joshua Sang are seeking leave from The Hague judges to formally appeal the decision to compel eight witnesses to testify against them.

Basing their arguments on the dissenting opinion of Judge Olga Herrera Carbuccia, the two maintained that the decision by the majority would infringe on their right to fair trial.

“Compelled witnesses, who appear before the Chamber in order to avoid fines and/or imprisonment, will feel coerced into adopting their original statements, even though prior to being compelled these witnesses went to great lengths to dissociate themselves from the content thereof,” argued Mr Ruto’s lead counsel Karim Khan.

“The creation of a coercive environment and the rejection of the principle of voluntary appearance, thus, significantly engage issues of fairness,” he added.

On April 17, the judges by majority allowed an application by the Prosecution to have the Kenyan authorities forced to avail the witnesses using all means available under the laws of Kenya.

The eight witnesses, whom ICC Prosecutor Fatou Bensouda has described as ‘insiders’, gave statements to the court’s investigators but later withdrew from the process citing personal reasons.

Mr Sang’s lawyer Katwa Kigen said the witnesses could still challenge the summonses on Kenyan courts thereby affecting the expeditiousness of the proceedings.

“The length of a domestic court challenge is not precisely known, but it is safe to say that it could take upwards of six months, as has been seen in the Barasa case,” Mr Kigen said.

In their application dated Monday, Khan and Kigen pleaded with the trial judges to allow them to challenge the decision saying if the ruling was incorrect, it would taint the case going forward.

Khan predicted that Ms Bensouda was likely to submit further requests for witnesses to be compelled to testify.

“Simply put, if the decision is wrong, it will taint the case going forward,” argued the British lawyer adding:

“Determination of the three issues by the Appeals Chamber at this stage would, therefore, ensure that proceedings ‘follow the right course’, and ‘provides a safety net for the integrity of the proceedings’.”