By Tom Maliti
Judges of the International Criminal Court (ICC) have allowed the prosecution to treat as hostile Witness 604, who was testifying for the third day in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Trial Chamber V(a) made the decision close to the end of Mondayâ€™s proceedings after senior trial lawyer Anton Steynberg spent the morning and most of the afternoon questioning Witness 604 on his statement recorded last year with investigators and clarifying which portions he now said were fabricated.
On Thursday, the chamber had declined to grant Steynbergâ€™s application, saying it was premature. The chamber advised Steynberg to further explore the areas thatÂ Witness 604 said he was recanting in an affidavit he swore in Kenya in August this year.
â€œIn the present case, the chamber has noted the extensive degree in which the witnessâ€™ testimony has diverged from the statement he provided to the prosecution,â€ said Presiding Judge Chile Eboe-Osuji. â€œThe request is therefore granted.â€
Before the chamber made its decision, Steynberg told the court he had exhausted all the areas he could explore with Witness 604 about his original statement and reapplied for the witness to be declared hostile.
Judge Eboe-Osuji then gave Steynberg, the lawyers for the defense, and the legal representative of the victims a few minutes each to make oral submissions on the matter. Steynberg said Witness 604, while testifying in court, had diverged so far from his original statement that he had recanted every major allegation he had made against the accused.
â€œHeâ€™s denied implicating Mr. Sang even when he did not implicate Sang,â€ Steynberg said, arguing for his application to be granted. â€œHeâ€™s been evasive on a number of occasions.â€
Orchlon Narantsetseg, the legal representative ofÂ the victims, said he supported the prosecutionâ€™s application. Karim Khan, Rutoâ€™s lawyer, opposed the application as did Caroline Buisman, Sangâ€™s lawyer.
Khan said it was obvious that Witness 604 had â€œderogated an account that the prosecution swallowed hook, line, and sinker.â€
â€œThe question is have the prosecution established that the witness is not interested in telling the truth? We say no,â€ Khan said.
Buisman said the Sang defense team shared the observations made by Khan. She also submitted that the chamberâ€™s threshold for declaring a witness hostile should be the criteria set out in anÂ April 25, 2005 decisionÂ of Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY).
Buisman quoted part of paragraph 31 of that decision and noted Trial Chamber II of the ICTY had said it was helped in reaching its determination of whether a witness was hostile by the high standard of record keeping the prosecution maintained in that case. Buisman pointed out that in the application before Trial Chamber V(a), all that was available was the statement of the witness. The questions that were asked of the witness during the statement-taking process were not provided, Buisman said.
After consulting for a few minutes with fellow judges Olga Herrera Carbuccia and Robert Fremr, Judge Eboe-Osuji then delivered the chamberâ€™s ruling.
At the start of the day, Steynberg continued where he left off on Friday, taking Witness 604 through his statement, asking him what was true and what was false. Steynberg asked about allegations the witness had made in his statement about a meeting at Rutoâ€™s house in Sugoi, two political rallies, and whether he had listened to Kass FM during the election period and after. The prosecutor also asked Witness 604 about a shooting incident at Turbo police station and looting that he saw.
Ruto and Sang are each facing three counts of crimes against humanity for their alleged roles in the bloodshed that followed the December 2007 presidential poll. Ruto at the time was a Member of Parliament and prominent leader of the Rift Valley region. Sang was a prominent presenter of the Kalenjin language radio station, Kass FM.
Steynberg asked Witness 604 about a rally Ruto addressed in December 2007. The witness said the rally never took place, and he made it up. Steynberg then asked the witness to compare his statement with his diary because in his statement he said the rally took place in early December, and in his diary he said it took place on December 21, 2007.
â€œYou told the court last week that you went to fetch your diary and added entries that would correspond with your statement, is that correct?â€ asked Steynberg, referring to theÂ witnessâ€™s testimony on Thursday.
â€œYes,â€ responded Witness 604.
â€œWhy is there this discrepancy?â€ Steynberg asked.
Witness 604 explained that the entries had been â€œcookedâ€ and then added, â€œI donâ€™t remember why we had to push it to 21st December.â€
Later on Steynberg asked the witness why he implicated Sang in his statement. Witness 604 said he did so on the advice of the other prosecution witness who had encouraged him to testify in order to reap the benefits of being a prosecution witness. Steynberg then referred him to his affidavit in which Witness 604 said he was recanting the allegation he made against Sang that Sang used derogatory words against non-Kalenjins in his broadcasts at Kass FM as a way of inciting Kalenjins against them.
â€œNowhere in this statement you made to the investigators do you in fact say that Sang used the words kimurkelda or kamama. Why is it that in your affidavit you said these false allegations that are in fact not contained in your statement?â€ Steynberg asked.
â€œAs I had said earlier when I was giving my affidavit I didnâ€™t have the statement at hand,â€ Witness 604 replied.
â€œSo that is your explanation?â€ Steynberg asked.
â€œYes,â€ responded Witness 604.
On Friday, Witness 604 had told the court that kimurkelda and kamama were Kalenjin words. He explained that kimurkelda meant stained teeth. It was difficult to hear the definition he gave for kamama. Witness 604, however, on Friday declined to state whether the words referred to a particular ethnic group.
Steynberg continued with the line of questioning about Sang and the station he worked for.
â€œWere you in fact listening to Kass FM during the post-election violence?â€ Steynberg asked.
â€œNo, I was listening to [Radio] Citizen,â€ said Witness 604. Radio Citizen broadcasts in Kiswahili, one of Kenyaâ€™s national languages.
After Trial Chamber V(a) made its decision to declare Witness 604 hostile, Steynberg returned to asking the witness about the affidavit he swore on August 11 this year. He began by asking Witness 604 whether he wrote the affidavit the same day it is dated, and what lead him to swearing an affidavit recanting portions of his statement.
Witness 604 said the affidavit was written the same day it is dated, and he said that he changed his mind about his statement when he had time to think about it. Witness 604 also said he chose Gregory Mutai to help him with the affidavit because he is a lawyer he had known for five years. The witness also told the court he traveled to Nairobi on August 10 to meet staff of the ICCâ€™s Victims and Witnesses Unit because the following day he was supposed to leave the country to prepare to testify at the ICC.
The remaining minutes of Mondayâ€™s proceedings were in private session. Witness 604 will continue testifying on Tuesday. The witness is testifying in Nairobi under subpoena from the court. He is addressing the court via video link from an undisclosed location and his lawyer, Mutai, is present with him during the hearing.
Source: The Hague Trials Kenya