Githu fights request to summon witnesses

The government and defence lawyers Friday vigorously opposed a request by the ICC prosecutor for the Hague court to summon seven witnesses who have recanted their testimony.

Attorney-General Githu Muigai and the defence teams of Deputy President William Ruto and journalist Joshua arap Sang said if the witnesses were not willing to testify, then they will not assist the prosecution to facilitate their appearance in court.

Prof Muigai said the court should not contemplate issuing an order for Kenya to summon the witnesses as this violates the Rome Statute.

“The government cannot compel any person who does not volunteer to be a witness to become one without violating the Kenyan Constitution,” he said adding:

“The treaty requires voluntary appearance of witnesses to testify before the court either in The Hague or anywhere else,” he added.

The prosecution had requested the trial chamber to exercise its powers under article 64(6) (b) to “require the attendance and testimony of witnesses” P- 0015, P-0016, P-0336, P-0397, P-0516, P-0524 and P-0495.

The witnesses, all of whom were under the protection of the court, gave statements providing information that addressed the core planning events that led to the 2007 post-election violence and alleged personal involvement by the accused.

According to the prosecution, the witnesses described the pre-election meetings they attended, some at Mr Ruto’s home, where the post-election violence was planned and in which participants, including the deputy president, distributed money and weapons.

Their identities were disclosed to the defence between February and March 2013, but following months of cooperation, the witness either refused to communicate with the prosecution and have said they no longer wish to testify.

They also gave evidence on how Mr Sang’s incited violence through his Kass FM broadcasts. The prosecution argued that they had exhausted all avenues to compel the witnesses to testify and requested the assistance of the government to summon them.

According to Deputy Prosecutor James Stewart, the witnesses’ evidence will be necessary for the presentation of their case and for the Chamber’s determination of the truth.

“The interests of justice are best served by having these witnesses appear and testify,” said Mr Stewart.

Mr Stewart said the witnesses could be compelled by the court to either testify via video link or before the Trial Chamber sitting in Kenya.

Mr Karim Khan, the deputy President’s lawyer and Ms Caroline Buisman, representing Mr Sang however opposed the request.

Mr Khan on the other hand said the latest request by the prosecution was as a result of “a failed marriage between them and the witnesses, who they induced by a promise of a better life.”