More trouble for Bensouda on Ruto witnesses

By Wahome Thuku and Felix Olick

Nairobi, Kenya: The case against Deputy President William Ruto at the International Criminal Court (ICC) could be dealt a big blow after the prosecution applied to withdraw a crucial witness from testifying.

The Office of the Prosecutor (OTP) wants the case against Ruto and his co-accused radio journalist Joshua Sang adjourned to June to enable them put their house in order.

Prosecution Counsel Anton Steynberg made the application before the Trial Chamber V (a) Thursday to withdraw witness number 25, who was scheduled to testify starting today.

Surprisingly, the prosecution lawyer admitted that during the witness’s preparation, it became clear that the witness was unable witness’s preparation, it became clear that the witness was unable to “accurately recall, or give a coherent and consistent account of critical parts of the evidence the Prosecution had intended to lead from the witness.”

“In the circumstances, the prosecution does not consider that the witness’s evidence is sufficiently relevant or reliable to call as a prosecution witness, particularly bearing in mind the limited court time available to the prosecution and the consequent need to present the most cogent and reliable evidence,” he told the bench.

Interestingly, Ruto’s defence team opposed the application putting a condition that they first be given crucial evidence, including a video of the witness preparation exercise recorded on Wednesday.

And as the Chamber decides on the withdrawal application today, it will also rule on whether or not Ruto, who is already in The Hague, should be allowed to return to the country just in case there are more proceedings.

Confirm charges

Witness 25 is so crucial to the prosecution that pulling him out of the list could be detrimental to the case.

This is one of the witnesses whose evidence was relied on to confirm the charges against Ruto and Sang by the Pre-Trial Chamber in 2012.

His evidence was used 25 times during the pre-trial hearing and about 17 times when the prosecution briefed the court on the need to commence the case. He is the witness who, as the link-person for the prosecution, also procured about five other witnesses.

Some of the witnesses he linked to the prosecution later pulled out, and the Government was ordered by the court to trace them and compel them to go and testify, either from Kenya or any other place.

Soon after the prosecution had applied to withdraw the witness, Ruto’s defence lawyer Karim Khan objected and requested that the prosecution first disclose to them all the notes and video clips recorded during a session on Wednesday when the witness was being prepared by to testify.

Further, Khan asked for a disclosure of all the expenses and benefits incurred by the prosecution on the witness since October 2013.

The lawyer also asked for disclosure of all the oral and written conversations between the OTP and the Victims and Witnesses Unit (VWU) regarding witness number 25.

He asked that the withdrawal request not be granted until they had reviewed the video and determined if they needed the witness.

However, the prosecution indicated that it has no objection if the defence wishes to consult with the witness with a view to calling him during their case. By reviewing the video, the Ruto defence hopes to establish whether or not the witness, who was already on the court’s premises, had expressed willingness to testify.

Sang’s lawyers did not oppose the application to withdraw the witness, but insisted that he should never be called in future.

However, the lawyers representing the victims Wilfred Nderitu supported the application for withdrawal.

Steynberg said the witness would never be called once taken out of the list.

Vanished in supermarket

He said the OTP had already disclosed all the expenses and benefits made to the witness, and there was nothing more to disclose, adding that there was no other conversation that had taken place between the office and the VWU

Mr Steynberg said they were ready to disclose the video to the Chamber but not to the defence, adding however that they could disclose the notes.

In their ruling the judges observed that part of Ruto’s request had already been disclosed and they were only to decide on whether the video should be disclosed. The judges also noted that the evidence of witness 25 had been heavily relied on during the confirmation of the charges against Ruto and Sang.

The Chamber ordered that the proceedings resume today when the Ruto defence will address the court on their decision after reviewing the video. The judges also ordered that the witness remains at The Hague.

When applying for Ruto to be excused from attending proceedings today, Khan said the DP had organised his national diary and, under the circumstances, there was nothing much he was doing at The Hague. Ruto is required to attend the proceeding of the first five days of every new session. He travelled to The Hague on Tuesday. The court declined to excuse him immediately, but ruled it would decide today.

The new development comes amid speculation that one of the 17 witnesses had also frustrated the prosecution and declined to travel to The Hague once at the Jomo Kenyatta International Airport.

Her testimony was heard entirely in camera. Another witness is also said to have vanished in a supermarket in Eldoret while en route to the ICC.