Bensouda seeks nod to use witness statements

ICC prosecutor Fatou Bensouda has asked to be allowed to use statements recorded by eight key witnesses as evidence in the case against Deputy President William Ruto.

In a 46-page filing, Ms Bensouda admits that the core evidence against Mr Ruto was still lacking allegedly due to manipulation of witnesses.

“As a result, the prosecution has been deprived of a significant portion of the incriminating evidence that it intended to present in support of its charges. Thus, the prosecution is compelled to resort to alternative methods to place before the chamber the relevant and cogent evidence that these witnesses would otherwise have provided,” she says.

Ms Bensouda, in the request filed on Wednesday, argues that the evidence contained in the statements which were recorded by ICC investigators will allow the judges to make a fair decision when they finally make their ruling.

“The central issue for determination in this request is the admissibility of records of prior interviews of missing and recanting witnesses who succumbed to improper influences. To establish the truth, the chamber should admit these records into evidence as substantive proof of their contents,” she says.

Ms Bensouda claims there was massive tampering of witnesses in the case facing Mr Ruto and former radio journalist Joshua arap Sang arising from the 2007/9 post-election, resulting in some of them either withdrawing from the case or recanting their statements.

She says 16 out of the 42 witnesses which the prosecution had lined up pulled out “most citing threats, intimidation and/or fear of reprisals”.

And she warns: “Not to do so (allow initial recorded statements) would deny to the chamber the ability to assess the whole evidence. It would also reward an attempt to obstruct justice.”

Ms Bensouda has had difficulties with eight witness she believes have key incriminating evidence against Mr Ruto who she successfully petitioned Trial Chamber Judges Chile Eboe-Osuji, Olga Herrera Carbuccia and in April last year to testify.

Witnesses Nos 15, 16, 336, 397, 516, 524, 495 and 323, however, disowned their recorded statements, refused to cooperate with prosecution counsel and were declared hostile by the judges.

Another witness, No 727, has refused to testify, demanding protection for his family and relatives before he takes to the box.

“Once summonsed to appear before the chamber, the witnesses repudiated almost the entirety of the incriminating evidence that they had initially provided to the prosecution. These witnesses were declared hostile, but despite all reasonable efforts by the prosecution to question them on the contents of their prior recorded testimony, they repudiated almost all material portions thereof,” Ms Bensouda says.

Mr Ruto’s defence team led by Mr Karim Khan has opposed the application, saying Ms Bensouda was seeking to use Rule 68 which was amended in November 2013 which denies their client the right to a fair judgment. At the time, the ICC had already recorded the statements from the witnesses.

The ICC prosecutor withdrew charges against President Uhuru Kenyatta in December last year due to lack of evidence.