Kenya: Deputy President William Ruto sustained the pressure to block the compulsory testimony of eight witnesses, accusing the Prosecutor of seeking to force a troubled individual to testify at the ICC.
Responding to an amended version of ICC Prosecutor Fatou Bensouda’s application for the Government to be compelled to surrender the witnesses, Ruto’s lawyers sought to portray their testimony as irrelevant. Ruto’s lawyer Karim Khan and Kipchumba Kigen-Katwa, representing his co-accused journalist Joshua Sang, challenged the prosecution to disclose evidence showing the witnesses were intimidated or bribed. “If the eight witnesses are hostile there is not at least a good chance that their evidence will be of material assistance to the prosecution’s case,” the two lawyers argue in a joint filing dated March 5. “It is known that P0015 has emotional and behavioural difficulties. Indeed, he appears to have recanted on at least three different occasions,” Ruto’s lawyer said.
“Given this background, combined with recent developments described in the request (by the Prosecution), it is submitted that this witness’s reliability and credibility is irrevocably compromised and he cannot be held out in good faith as a witness of truth,” the lawyers contend. The Defence also questions whether “forcing a clearly troubled individual to testify would be in the individual’s best psychological interests.” Pulled out They argue the link between the testimony of another witness, P0016, with the unreliable account of P0015 also casts doubts on the probative value of any compelled testimony. Further, the defence lawyers claim the evidence of another witness, P0323, is irrelevant to the charges facing Ruto and Sang since it lacks significance. From the court papers, although observations relating to witness P0323 are redacted, there are suggestions the witness made reference to the Network, an alleged alliance of various groups the prosecution alleges committed atrocities central to the case. “While the list of Network members is stated to be non exhaustive, if Mr Ruto’s connection to [REDACTED] were so central to its case that the prosecution needs to summon a witness to testify to that relationship, then at a minimum, [REDACTED] role in the network should have been expressly named,” the filing states.
The lawyers argue ICC judges can attempt to contact the witnesses again through the ICC’s Victim’s and Witnesses Unit and convince them to appear voluntarily, instead of compelling Kenyan authorities to surrender them. “The court does not have powers to compel a witness to testify even if that witness is at the door of the court. The only power the court has is to compel a witness who appears before it to answer questions,” they said.
But Bensouda argues that the court has the power to compel both the witness to appear and the Government to facilitate their appearance in court. Ruto and Sang also have demanded evidence from Bensouda that seven out of the eight witnesses who pulled out from the case were bribed or intimidated. They said that the prosecution has made that accusation, but has not made the evidence available to their lawyers yet in violation of the ICC laws and rules. In her submission to the judges sitting in the case against Ruto and Sang’, Bensouda claimed that she has evidence “in the case of each of the seven witnesses of intimidation, bribery or improper influence, which has been the cause in their ceasing to cooperate with her office. However, Khan and Kigen, said in their joint reply that the prosecution has violated the rules of the court by not disclosing such evidence.
“The Defence is unaware of the evidence. In our submissions, this evidence is disclosable under Article 67(2) of the Rome Statute and Rule 77 of the Rules of Evidence, “they asserted. The seven witnesses are at the centre of a battle between Bensouda and Ruto/Sang, since she wants the court to compel them to testify even if that means forcing the Government to drag them to The Hague.