Although ruling is welcomed, legal experts warn that witness testimony may not strengthen prosecution case against Kenyan deputy president.
Justice experts have given a cautious welcome to the decision by judges at the International Criminal Court (ICC) to summon eight witnesses who had refused to testify for the prosecution in the case against Kenya's deputy president.
On April 17, the three-judge panel hearing the case against William Ruto and former broadcaster Joshua Arap Sang ruled by a two-to-one majority that the witnesses should appear before the court via video-link or at an agreed location in Kenya. The ICC is unable to force witnesses to travel to The Hague to testify in court.
The judges asked the government in Nairobi to employ "all means available under the laws of Kenya" to make sure the witnesses gave evidence.
Their decision may become a further test of the Kenyan authorities' willingness to cooperate with the ICC. It remains unclear, however, whether the move will actually help prosecutors to strengthen their case.
Ruto and Sang are being tried on charges of crimes against humanity - including murder, persecution and forcible population transfer - that relate to the violence that followed a disputed presidential poll in December 2007. At least 1,100 people lost their lives and 650,000 others were forced from their homes during two months of political and ethnic bloodshed.
President Uhuru Kenyatta is also being prosecuted in a separate case relating to the post-election unrest.
The witnesses summoned to give evidence have been afforded protective measures and are known only by the reference codes P-0015, P-0016, P-0336, P-0397, P-0516, P-0524, P-0495 and P-0323.
The decision followed a prosecution request in December asking judges to ensure that the witnesses testified and to instruct the Kenyan government to support the move.
According to prosecutors, the witnesses had previously given statements describing meetings which they attended before the elections where violence was planned and Ruto gave out weapons and money. The witnesses also described Sang's radio programmes on Kass FM in which they said he incited violence.
Prosecutors say that after the witnesses' identities were disclosed to the defence last year, they either declined to testify or stopped communicating with the Office of the Prosecutor (OTP). Some of them subsequently accused the OTP of bribery and of coaching witnesses.
In seeking the witnesses' testimony, judges ruled that the Kenyan government had "an obligation to cooperate fully with the court through serving the subpoenas to the witnesses and by assisting in compelling their attendance before the [judges] by the use of compulsory measures as necessary".
The judges said it was essential for the court to be able to summon witnesses, otherwise it would be a "phantom" institution. They said the states that have signed up to the ICC "must be presumed to have created a court with every necessary competence, power, ability and capability to exercise its functions and fulfil its mandate in an effective way. These include the power to subpoena witnesses."
NUMEROUS WITNESS WITHDRAWALS
Several other prosecution witnesses scheduled to testify in the Ruto/Sang and Kenyatta cases have also withdrawn their evidence or admitted lying to investigators. Some have cited security fears for themselves and their families as reasons not to go to The Hague. (See Action Urged on ICC Witness Protection.)
Last December, Prosecutor Fatou Bensouda was forced to request a delay to the start of Kenyatta's trial after a witness recanted his testimony. That case is now scheduled to begin in October, after judges ordered the Kenyan authorities to provide evidence - including Kenyatta's financial records - which prosecutors requested two years ago. (Kenyan President's Trial Adjourned Until October.)
Prosecutors were forced to drop their case against a fourth defendant, Francis Muthaura, in March last year after a key witness said he had lied in his earlier statement.
Bensouda has repeatedly complained of widespread witness intimidation and interference in Kenya.
Clair Duffy, senior legal advisor at the International Bar Association (IBA) in The Hague, welcomed the decisions issued by ICC judges on the Ruto/Sang witnesses and the Kenyatta trial evidence.
"I think it is good to see the court finding some teeth on a couple of these cooperation issues," she said. "In this decision and in the Kenyatta decision you can see the judges taking a bit of a stand on what it is going to require to fulfil the mandate that the states parties have given to it."
The question now is what impact the new witness testimony will have on the prosecution case against Ruto and Sang.
Some justice experts have told IWPR that given the OTP's past difficulties in getting witnesses to testify, the latest ruling is a step in the right direction.
"The withdrawal of these witnesses had been a serious challenge for the prosecution," Willis Otieno, a lawyer at Kenya's High Court, told IWPR. "The [decision] presents a fresh opportunity for the [prosecutors] to re-write their case.
"It's a very bold step by the court in terms of re-energising the case."
Duffy offered a more cautious view, noting that the witnesses concerned had either informed the OTP that they no longer wanted to testify or had broken all contact with it. That could make it risky to put them on the stand. She pointed out that any prosecutor would be hesitant to question witnesses against their will as it was a "great unknown" what they would say.
"In a really practical sense it is not clear what follows from this," Duffy said. "I think it is a good step in terms of the court saying it has the power to do this and that could be important for other cases, for prosecution and defence witnesses, but it doesn't necessarily follow that somehow the prosecution is going to be able to mount an effective case [against Ruto and Sang] because of this decision."
The testimony given by these witnesses is likely to present a number of challenges to judges at the ICC, who will have to evaluate its merits carefully in light of their known reluctance to appear.
"If a witness gives one version of a story and then recants that, or recants part of that, there are serious issues of credibility." Duffy said. "So there are going to be major issues for the judges in relying on the whole of the evidence or even part of it."
TEST OF GOVERNMENT COOPERATION
Ruto's lawyers opposed the prosecution's bid to summon the witnesses on the grounds that it was not the Kenyan government's responsibility to enforce a request for a witness to give evidence. But they have previously expressed concern that witnesses refused to testify in the case, and said they would support efforts to bring this evidence before the court.
Much now depends on whether the Kenyan government is prepared to comply with the judges' request. Its cooperation has frequently been called into question since the ICC began its investigation in Kenya.
Cyprian Nyamwamu, director of the Future of Kenya foundation in Nairobi, told IWPR that the ruling would be a "big test" of cooperation with the ICC.
This latest ruling follows the March 31 decision in the Kenyatta case in which judges urged the government to cooperate with prosecutors. The OTP had asked judges to make a finding of non-compliance against the Kenyan government and report the matter to the court's 122 member states, known as the Assembly of States Parties.
Kenyan attorney general Githu Muigai told judges in February that domestic law prevented the authorities from compelling a witness to testify.
"These persons reserve the right to voluntarily comply with the summons or refuse to do so," Muigai told the bench during a court meeting to discuss the issue.
In last week's ruling, however, judges noted that Muigai had not pointed to any national law that prevented the authorities from assisting in compelling a witness to testify.
For Haron Ndubi, executive director of Haki Focus, a public policy organisation in Nairobi, the issue is one of political will.
"The law is the law," he told IWPR. "The issue is will the government of Kenya comply and cooperate with ICC in terms of facilitating them [witnesses] to move to ICC to testify?"
IWPR's Africa Editor Simon Jennings contributed to this article.
This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.