16 May 2014

Kenya: ICC Adjourns Ruto-Sang Trial Over Witness Snag

Nairobi — The trial against Deputy President William Ruto and journalist Joshua arap Sang at the International Criminal Court (ICC) was on Friday adjourned to June 16 over witnesses difficulties.

Trial Chamber V(A) Presiding Judge Chile Eboe-Osuji directed the prosecution to ensure it will have witnesses to take the stand for the one-month session that will run up to July 16.

"The prosecution requested an adjournment due to logistical challenges relating to their ability to bring witnesses to testify for this session. We adjourn to reconvene on June 16 for a session that will last to the 16th of July," Eboe-Osuji ruled.

The judge however expressed concern over the prosecution's challenge in bringing witnesses to testify and directed that all means available should be used.

He particularly mentioned the short session of the trial that resumed on Wednesday only for it to end two days later after the prosecution failed to present witnesses.

The trial was initially supposed to resume on Monday but was moved to Wednesday over the same challenge of lack of witnesses.

According to the Trial Chamber, the prosecution should stretch the possibilities it has in ensuring witnesses are available to testify when the trial resumes.

"The chamber expresses very serious concern and dissatisfaction that we only had days of testimony in this session, a session that was scheduled to last for four weeks hearing witnesses. All available means must be applied by the prosecution to ensure that this is not repeated," Eboe-Osuji warned.

He advised the prosecution to make 'requests for cooperation and even requests for summonses' to ensure it has witnesses to fill up the session between June and July.

Ruto, who was in The Hague in compliance with a requirement for him to be in court during the first five days after a court recess, will be present for two days only when the trial resumes in June.

Earlier, defence teams of Ruto and Sang requested the judges to compel the prosecution to furnish them with the updated list of witnesses and also bring the remaining four witnesses to testify and have the case closed.

Ruto's lawyer Karim Khan complained that the prosecution was inconveniencing parties in the case. READ Witness removal could hinder Ruto's case - ICC judges

"The prosecution should be ordered to get their ducks in a row so that those witnesses come to fill the next sessions. It is not fair to keep investigating for witnesses that have indicated to the prosecution they are not willing to attend. We want this case to close before the summer break," Khan said.

According to the defence counsel, the inconsistencies of witness presentation was delaying the process and unfairly dragging justice for the accused persons.

"It is understandably causing a huge difficulty for the clients (Ruto and Sang). Their names have been tarnished long enough. There is no reason why the prosecution should be given an indulgence to have adjournment as if it's a matter of course. We are saying have your adjournment but at that point get your witnesses together and you close your case once they have testified," he said.

The defence counsels said the delays were costly and time consuming for the parties to travel to The Hague expecting the proceedings to continue only for the prosecution to notify them at the last minute that there are no witnesses to take to the stand as earlier scheduled.

Sang's lawyer argued that there are seven witnesses who had written to the prosecution saying they were unwilling to testify yet the prosecution had not yet communicated to the defence over their withdrawal.

Senior Trial Attorney Anton Steynberg said the prosecution could not give the final list because the witnesses who had indicated that they were unwilling to testify could change their mind with time, as it happened with the 17th witness who was the only one who testified in the session that ended on Friday.

The witness declined to testify on Monday but agreed to give evidence on Wednesday though in private session.

"I do have some difficulty with the last request and that is that we have seen with certain witnesses who had indicated that they were unavailable that they do change their mind, the last witness was one case," Steynberg explained.

The court further allowed the Witness and Victims Unit to release Witness P0025 who the prosecution had withdrawn after it found his evidence to lack credibility.

Khan had requested for the witness to be held at The Hague for questioning but after watching his video recording during the preparation session, he said he was no longer interested in questioning him since his evidence lacked credibility.

The defence teams expressed dismay with the manner in which the prosecution handled the evidence of the witness. They complained that it was unfair to use his evidence to confirm charges and even make extensive referrals to his evidence in the Pre-Trial brief only for it to withdraw him years after using his evidence to argue its case.

The Friday adjournment is not unique in the case against Ruto, Sang and President Uhuru Kenyatta.

Since the trial against Ruto and Sang began on September 10, 2013, the court has had to adjourn the trial a number of times over witness hitches.

Whereas the prosecution has held that witnesses have been intimidated and bribed not to testify before the court, the defence teams have blamed the prosecution for coaching witnesses and promising them financial benefits to motivate them to testify.

Last month, ICC ordered Kenya to compel eight witnesses in the case against Ruto and Sang to testify despite their communication to the court that they were unwilling to give evidence.

However, Kenya's Attorney General Githu Muigai has indicated that Kenya cannot force witnesses to testify before the court.

President Kenyatta's trial was also adjourned to October after the prosecution told the court it did not have evidence to sustain charges against him.

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