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It’s a shame, ICC judge terms witnesses saga

International Criminal Court (ICC) judges hearing the case against Deputy President William Ruto and radio journalist Joshua arap Sang yesterday expressed apprehension at the premature adjournment of the proceedings as the prosecution made spirited assurance all witnesses lined up to testify would be availed. Concerns over the availability of witnesses were raised as the ICC Trust Fund for Victims (TFV) warned that victims of the 2007-8 post-election violence may not be compensated should Kenya pull out of the Rome Statute.

Reports quoted Pieter De Baan, the Executive Director of the ICC Trust Fund for Victims, as saying the victims of the 2007/2008 post-election violence will not benefit from the pool of funds set aside for them if Kenya goes ahead to pull out of the International Criminal Court. De Baan warned he Fund’s board of directors “would find it hard” to give support to the post-election violence victims if the country is no longer a member of the ICC.

But in the court, Presiding Judge Chile Eboe-Osuji, while adjourning the trial after the prosecution failed to produce its first witness as scheduled, described the turn of events as a shame, saying it was the chamber’s expectation to proceed with the actual trial after completion of the opening statements by the various parties. “Prosecution, I take it that you do not have any witness to present. It is a shame really because we were hoping to proceed today but that is the reality we have,” he pointed out.

Ruto’s lawyer Karim Khan told journalists after the adjournment the hitch was an indication the prosecution’s case was unravelling. “It is a case that is unravelling be- fore our eyes. It is unravelling before it even starts,” he declared outside the courtroom, adding that the office of the prosecutor Fatou Bensouda had indicated it was ready to start, only for the contrary to emerge due to what he said were witness withdrawals and refusal to testify.

Khan also noted that the prosecution had on Tuesday said it would present 22 witnesses only to clarify yesterday that they will be those who will testify on actual events and not those with incriminating evidence. The witness hitch came only two days after the trial opened and with the adjournment.

Ruto is expected back in the country today and will return to the Netherlands in time for the resumption of the trial on Tuesday. Initially, Ruto and Sang were expected to spend four weeks in The Hague. The surprise adjournment also means scores of MPs who had accompanied him had to make a decision on whether to fly back home with him or stay on in The Hague for the weekend.

However, the ICC prosecution team told the Chamber that the witnesses to take the stand were expected to arrive to the Netherlands between yesterday evening and latest today. The second witness is within the Netherlands and could be availed at short notice. Khan requested the prosecution to provide the revised list of the first 10 witnesses to allow the defence team prepare itself adequately.

ICC Senior Trial Lawyer Anton Steynberg committed to avail the revised list of witnesses to the defense teams by end of yesterday but clarified that they will not be limiting themselves to the 22 witnesses as earlier communicate. Steynberg said the prosecution witness was en route to The Hague and would be in court next Tuesday as Monday is a public holiday in the Netherlands. “The first witness is en route. In fact, she should be arriving in The Hague if not today then tomorrow.

We do anticipate unless something drastically goes wrong, we will be in a position to continue on Tuesday,” he told the court. Though the prosecution had on Tuesday told the court that it would present 22 witnesses and victims to give evidence to demonstrate that Ruto and Sang planned and executed attacks in Rift Valley, Steynberg yesterday clarified that they were “circle crime-based” witnesses to describe specific events in certain areas.

“I was referring to circle crime-based witnesses who will testify as to actual events. I was not saying that the prosecution is now limiting its witnesses list to 22 people,” he said. He was responding to lawyer Katwa Kigen for Sang who wanted to know how the witness list had changed from 42 to 22 people. The prosecution also promised to give the defence an updated list of its witnesses after Khan alleged that three more prosecution witnesses had dropped out.

“This being previous orders of the court regarding the defence entitlement that we should have at least the next 10 witnesses in order be- cause the first three witnesses have withdrawn. We don’t know who is going to be the fourth witness. The prosecution sent us a revised list of the next 10 witnesses,” he said.

Khan also requested the court to ensure the defence is furnished with an updated list of witnesses since three witnesses had dropped out after the defence teams were given the list of the first 10 witnesses. “We actually don’t know who is the second witness, is it 464 or is it 326? I would like the prosecution to tell us who is the second witness,” Khan stressed.

Subsequently, the prosecution expects to call its first witness on Tuesday at 10.30am, when the trials resume and will take time to examine them after which the defence counsel will also be allowed to cross-examine them. Similarly, the defence team will later on present a number of witnesses to help argue out their case after which they will also face the prosecution for cross-examination.

Prior to the court taking a break, Steynberg had requested the judge 10 minutes to respond to the four-hour submissions made by counsel for both Ruto and Sang amid protest by the defence teams. “The time prosecution is asking for is irrelevant because we were all allocated two hours to make our submissions and we precisely did that.

It is thus unheralded for the Prosecution to make a second opening statement in the guise of clarification, they are attempting to squirm out of embarrassing moments,” stated Khan. Regardless, Judge Osuji granted the prosecution just a few minutes to reply to limited issues, which did not include the evidence presented to the court.

It was at this point that Steynberg insisted that the video clips played by the defence team were not evidence, stating that the prosecution case was not an indictment of the Kalenjin community and its structures as it had been perceived but rather the network that hijacked the said structures. The prosecution also said that Khan mischaracterised its case during his Tuesday submissions and maintained their case was not that Ruto was motivated by ethnic hatred.

He added that Ruto and his network hijacked traditional and cultural practices in order to advance their own political ends, saying that Khan used selective transcripts of the tapes to misrepresent their case. “Whether Ruto hates the Kikuyu or not is not the case. The prosecution says that he was driven by the thirst for power and that he took advantage of existing tension between the Kikuyus and Kalenjins in the Rift Valley,” Steynberg explained.

But Khan insisted that the materials they had put forward is evidence that will be relied upon to prove the innocence of their clients. On the first day of trial, Khan played different videos showing Ruto calling for peace on several occasions. In one of the videos, former Prime Minister Raila Odinga’s name was dragged into the trial.

Khan played four times, the clip of Raila calling his supporters into the streets for a mass action but he is seen correcting his statement after Ruto whispered to him to use the words ‘peaceful mass action. - By IRENE GITHINJI

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