Lawyer wants ICC to declare witness in Ruto case hostile

What you need to know:

  • Witness P-0637 will be the fourth witness to be declared hostile. The importance of declaring a witness hostile is that the calling party is then allowed to cross-examine him to establish why he is departing from his original statement.
  • The defence did not oppose the request by the prosecution, given that his testimony has differed from the original statement he had given to the prosecution. However, the defence argued that the witness was not being adverse to the prosecution, rather, argued Mr Essa Faal for Deputy President William Ruto, he was mostly telling the truth.
  • On Tuesday, the witness said that twice, he heard former Prime Minister Raila Odinga talk of a bloodbath if ODM lost the 2007 General Election.

The ICC prosecution wants the current witness, P-0637, declared hostile after he deviated from his original statement.

Trial lawyer Alice Zago told the chamber that the witness had “deliberately and systematically departed from his previous statements to the prosecution”.

The witness also claims he was coached by representatives of the Office of the Prosecutor. He was not present as he was said to be unwell.

“He has deviated entirely from every incriminating aspect contained in those (original) statements. In our respectful submissions the witness has been unable to provide a consistent or credible reason why he has departed from his statement,” said Ms Zago. 

“Additionally, the prosecution submits that the witness has been evasive in his general demeanour and has been systematically adverse to the Office of the Prosecutor.”

 The witness, who has been giving evidence through video link from a secret location in Nairobi, has also recanted his previous evidence. 

The defence did not oppose the request by the prosecution, given that his testimony has differed from the original statement he had given to the prosecution. However, the defence argued that the witness was not being adverse to the prosecution, rather, argued Mr Essa Faal for Deputy President William Ruto, he was mostly telling the truth.

“We do not oppose the application. However, we wish to register the fact that we are only accepting that in the present circumstances this witness may be declared hostile only because he has significantly departed from the previous information or evidence he provided to the prosecution,” said Mr Faal.

“We do not necessarily subscribe to some of the other views pressed by the prosecution, in particular, the views that the witness had made adverse imputations against the conduct of prosecution staff,” he added.

Witness P-0637 will be the fourth witness to be declared hostile. The importance of declaring a witness hostile is that the calling party is then allowed to cross-examine him to establish why he is departing from his original statement.

It is easy to recant original statements because they are not given under oath. As such, the court cannot impose sanctions on the witness for doing so unless he deliberately lied under oath in his testimony.

On Tuesday, the witness said that twice, he heard former Prime Minister Raila Odinga talk of a bloodbath if ODM lost the 2007 General Election.

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He claimed he heard Mr Odinga make the remarks at a rally in Kericho and also watched him on television.

“This is what Odinga said before the General Election. He said if the ODM does not win the election, there will be a major bloodbath in Kenya,” he told the court.

According to the witness, there was tension after Mr Odinga made the remarks, which forced people living around Kericho to start fleeing after casting their votes.

“PNU supporters became afraid and the fear spread throughout the entire region of Kericho,” he said.

The witness said he understood Mr Odinga’s remarks to mean there would be “war” between the ODM and PNU supporters.