Hostile witnesses may be double-edged sword

Use of testimony from a “hostile” witness in the case against DP William Ruto may be a double-edged sword for the prosecution and defence, analysts say.

Early this week, judges trying Ruto for crimes against humanity declared witness 604 hostile following an application by the prosecution.

According to an online law dictionary (legal.com), a hostile witness is technically an “adverse witness” in a trial who is found by the judge to be hostile to the position of the calling party.

The witness is among eight others who have recanted their original testimonies to the prosecution. Besides the prosecution, they had also given similar evidence to the Kenya National Commission on Human Rights and the Waki Commission. The eight had placed Ruto in specific violence planning meetings, given evidence of his alleged role in supporting, planning and financing the violence as well as evidence of inciting statements at locations where violence happened.

They had also provided evidence of the role of other members of the “network” in the violence and how co-accused Joshua arap Sang’s radio show allegedly supported and incited the people. Some also allegedly participated in the attacks and gave descriptions of the violence in locations charged in the case. They have since said their testimony to the prosecution was concocted to fit the prosecution narrative and attract certain rewards. If the circumstances of the current witness are anything to go by, the remaining seven witnesses are likely to attract “hostile” status if and when they agree to testify.

“If the judge declares the witness hostile, the attorney may ask “leading” questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition,” the online dictionary states. According to Ratanlal & Dhirajlal’s most popular “The law of evidence” volume, “to be declared hostile the witness must appear not desirous of telling the truth, therefore making it necessary to regard him as hostile to get the truth from him.”

A Kenyan criminal lawyer who refused to be quoted owing to aspects of his work told The Standard on Sunday that declaring witnesses hostile achieves two effects: Allowing calling party to cross-examine them in an adversarial manner and rendering their evidence to be no probative value.

“When you look at these two effects critically, you will realise there is absolutely no value in a trial court allowing hostile witness to continue giving evidence. It amounts to a waste of time for everyone. The evidence adduced can neither help the defence nor the prosecution,” the lawyer said.

He said this is principally the reason why the defence was opposed to the declaration because they lost the grand opportunity to use the recanted evidence in trashing the prosecution’s case.

The lawyers account is nevertheless sharply contrasted by lawyer Harun Ndubi. According to Ndubi, the value of the hostile witnesses lies in the cross-examination and what comes of it.

Ndubi says in the present case, judges are evaluating the responses and trying to decipher the truth from them. At the end, it will be established which of the two sets of evidence- original recanted evidence or the oral evidence appears truthful.

“The ICC process is not strictly adversarial. It’s a blend of civil and common law tradition, a blend whose objective is search for truth. To this end, judges interrogate both sets of evidence and make a finding,” Ndubi said.

In Ndubi’s world, neither the prosecutor nor defence will lose with declaration of a witness as hostile: “Nobody is losing if you take judicial process to be search for ultimate truth. At the end, justice will be greatly helped including attendant issues of integrity of witness protection regime and many more,” Ndubi said.

In the Deputy President’s case, the judges have ruled that testimony of a hostile witness has value. In their April 7, 2013 decision compelling the appearance of the eight witnesses, the judges dismissed defence assertions that possibility of them turning hostile would make their compellability worthless.