NAIROBI: The Government wants to be allowed to make submissions in the case against Deputy President William Ruto at the International Criminal Court (ICC).
Attorney General Githu Muigai has applied for permission to file observations on behalf of the Government as a friend of the court.
In particular, the AG wants to make observations on the request by the ICC Prosecutor Fatou Bensouda to be allowed to use prior statements recorded by witnesses who later recanted them.
The AG made the application as it became clear the case against Ruto and radio journalist Joshua Sang would depend on whether those statements are accepted or rejected by the Trial Chamber.
The Office of the Prosecution (OTP) has already indicated that without those statements, the rest of the evidence cannot sustain a charge against the two accused.
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The OTP is now banking on an amendment made to the ICC rules in 2013, allowing such statements to be admitted in court as evidence. Bensouda says she wants the prior recorded testimony admitted for the truth of their contents. They include written statements and transcripts of recorded interviews and other annexed documents.
About 16 out of 42 prosecution witnesses withdrew their testimonies and stopped cooperating with the OTP. Some recanted their statements, which the OTP intended to use, claiming they had been influenced to record them. Others refused to testify, citing threats, intimidation and fear of reprisals.
The chamber however, allowed the OTP to have some of them compelled to testify and a number of them were declared hostile when they disowned their statements in court. Bensouda says there is evidence that the witnesses had been interfered with by people acting for the benefit of the accused.
