The Star (Nairobi)

Kenya: Judges Allow Bensouda to Hide Witness

ICC Prosecutor Fatou Bensouda has been allowed to continue hiding the identity of one of her witnesses in the case against Eldoret North MP William Ruto and former radio presenter Joshua Sang.

On Thursday, Trial Chamber V judges reverted their earlier decision that required the prosecutor to disclose the identity and evidence of the witness even after she raised security concerns.

"The Chamber considers that the recent developments in P-524's security situation justify the further temporary non-disclosure of his identity in order to give the VWU sufficient time to finalise its security assessment and to put in place any required measures," the judges said.

The witness's identity will now be disclosed as after the Victims and Witnesses Unit has confirmed that the necessary protective measures have been implemented and it is safe to reveal it to the Defence.

Earlier last month, Bensouda had her request for delayed disclosure of the said witness' identity but after hearing from Ruto and Sang, the judges rejected the request.

But last week, Bensouda told the judges that she had new information on intimidation of the said witness by "one of the accused or his associates" and asked the court to put the witness under its protection.

"The Prosecution submits that these incidents constitute compelling new information in light of which the decision to reject P-524's delayed disclosure should be reconsidered.," Bensouda told the judges.

At the same time, the judges on Thursday gave an indication that they could amend conditions set against the four Kenyans who are alleged to have committed crimes against humanity during the 2008 post-election violence.

The Trial Chamber V judges asked the accused, the prosecution, victims' lawyers and the registry to make submissions, by February 6, on whether the conditions set by the Pre-Trial Chamber II in 2011 should be amended.

The judges also asked for submissions on whether there are any practical, financial or legal matters to be dealt with for the accused to be able to attend the trial, including the modalities of their stay at The Hague or Arusha, if their requests to change venue is allowed by the court.

Both the prosecution and the defence are expected to apply for changes on some of the conditions if recent events surrounding the cases is anything to go by.

One of the accused, Deputy Prime Minister Uhuru Kenyatta, is among the front-runners in this year's presidential race with another suspect, Ruto, as his running-mate. The other two are former Cabinet Secretary Francis Muthaura and Sang.

Lawyers representing the four will be travelling to The Hague on February 14 for the status conference where the issues identified by the judges are to be discussed.

On Wednesday, Ruto hinted at the possibility of asking the ICC to make adjustments to its programme to accommodate him and Uhuru, if the latter is elected President. He said that is Jubilee Coalition takes over government the ICC will have to adjust its timetable for the smooth running of Kenya and the cases.

"To the best of my knowledge on March 5, we will sit down with the people running business at The Hague and tell them we have a matter in court, we have every intention to attend, but we also have a country to run," Ruto said.

On of the conditions is that the four are to attend all hearings are required by the court. Bensouda may also seek to tighten a condition requiring the suspects to have no contact directly or indirectly with any person who is or is believed to be a victim or a witness of their crimes.

She may also ask for the judges to re-look into the condition requiring the four to refrain from corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, or tampering with or interfering with the Prosecution's collection of evidence.

Bensouda has severally complained that her witnesses were being intimidated by associates of the suspects adding that some of them have been tampered with.

Uhuru and Ruto have also severally said that the prosecution and other international players have been bribing witnesses to provide evidence against them.

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