Kenya must compel reluctant witnesses to testify – ICC Appeal Judges


Judges at the International Criminal Court have upheld a decision by the trial chamber to compel nine witnesses to testify in the case against Deputy President William Ruto and his co-accused former journalist Joshua Arap Sang.

The five-judge bench of the ICC Appeals Chamber on Thursday ruled that there was no error with the trial chamber’s decision. It also ruled that Kenya is obligated to serve and enforce summons for the witnesses to testify from the country.

Four of the nine witness have already testified via video link from unknown locations in Nairobi, but have been declared hostile witnesses by the Trial Chamber.

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Ruto and Sang had appealed against the trial chamber’s decision made on April 17 requesting Kenya to compel the nine reluctant witnesses to testify before the court. They argued that Kenya’s constitution and the Rome Statute do not allow witness compulsion.

The ICC Judges said there is no principle of voluntary appearance at stake in this case of witnesses testifying from home via video link. The court further said that what the Rome Statute protects against is moving people across borders without their consent.

The decision comes a day after President Uhuru Kenyatta appeared before the court in The Hague for a status conference.

The conference was on a deadlock between Uhuru and Prosecutor Fatou Bensouda. Bensouda has accused the Kenyan government of refusing to cooperate and to release key phone records thereby hindering the case against Uhuru.

The phone records allegedly show funding links between Uhuru and the Mungiki.

The decision made is key to the defendants because Bensouda indicated that she would be seeking to admit the initial statements of uncooperative witnesses directly as evidence — if it is proved they were influenced to pull out of the case.

In their ruling, the Judges, headed by Nigerian Chile Eboe-Osuji, ordered the government to employ “all means available under the laws of Kenya” to ensure the witnesses give evidence.

They said it was essential for the court to summon witnesses because it would otherwise be a “phantom” institution.


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