Witness troubles spell doom for Fatou Bensouda

ICC Prosecutor Fatou Bensouda’s troubles with the Kenyan cases appear to increase as the judges declared witness 604 hostile in the case against Deputy President William Ruto and Mr Joshua Sang.

International criminal law observers said the “rotten underbelly” of the case which Mr Ruto’s lead counsel Karim Khan had referred to in the opening statements in September 2013 became more apparent when the witness claimed that he was “coached” by a female investigator.

“Witnesses belong to the calling parties (in this case the prosecution). Before a witness takes the witness stand, there is an understanding with the calling party what s/he is going to say,” said International Centre for Jurists – Kenya’s Executive Director George Kegoro.

Any deviation from that understanding damages the calling party’s evidence.

And as it happened with witness 604, senior trial lawyer Anton Steynberg applied to have the witness declared hostile so that he could cross-examine him to test whether the turnaround was influenced by other reasons than the ones he had stated in his affidavit.

Witness 604, in his original statement to the prosecution, had alleged that he was in the meetings in which Mr Ruto was planning the 2007/08 post-election violence.

PROMISE OF GOOD LIFE

However, he recanted everything he had told the prosecution in an affidavit through lawyer Edwin Mutai in August, less than a month to the resumption of trial on September 1.

He also testified, under summons, that he had “cooked” the evidence because of his natural dislike for Mr Ruto and the promise of good life in Europe.

As such, the prosecution sought to have him declared hostile.

Mr Steynberg argued that 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.

According to Mr Kegoro, if a witness changes testimony, he embarrasses the case, and the calling party would then be at liberty to request that he be declared hostile.

The impact of declaring the witness hostile then opens the way for the calling party to cross-examine him. In such circumstances, the calling party while cross-examining the hostile witness goes outside the original statement to establish why the witness has changed his mind.

“The statement is no longer important for the original purpose. The original statement is destroyed, and the court cannot rely on it. The calling party then argues that the change of mind has not been done in good faith and tries to elicit the reasons from the witness,” said Mr Kegoro.

In the case of witness 604, the prosecution can go out to find another witness to prove the point it had intended to do with this particular one. Otherwise, that portion of the evidence the prosecution wanted to prove with the witness is destroyed.

BENEFIT BOTH SIDES

Lawyer Haroun Ndubi, however, argued that given that ICC is both adversarial and inquisitorial (applies both the common law and the French legal system), the judges themselves can evaluate the testimony of witness 604 against other facts so far presented.

“The evidence of a hostile witness alone cannot lead to a conviction unless it corroborates some facts. In such a case it can benefit both sides,” said Mr Ndubi.

Evans Monari, who represented former Commissioner of Police Hussein Ali at the ICC, argued that it is better for a witness to recant a statement given to the calling party and be considered hostile than to on the stand where he could be subject to perjury charges.

Statements given to the calling parties are usually signed by the witness. However, the witness is not required under any law to give such statement under oath, which could explain why some in the Kenyan cases have found it easy to recant.

According to Mr Monari, no meaningful investigation can take place if the potential witness is required to give a statement under oath.

Ms Bensouda’s troubles with the shifty witnesses in the Kenyan cases have been well documented.

While some witnesses have recanted their testimonies in the cases against Mr Ruto, Mr Sang and President Uhuru Kenyatta, others have been dropped by the prosecution over failure to corroborate facts in their original statements.

In October 2013, Number 189, the third prosecution witness, shocked the court when she admitted to having been procured by associates of former President Mwai Kibaki to fix Mr Ruto.

Defence lawyer Shyamala Alagendra asked the witness whether she was aware that the aim of some PNU officials was to blame Mr Ruto for the violence regardless of the truth, to which the witness replied in the affirmative.

The prosecution’s case against President Kenyatta is now hanging in the balance with hopes of Ms Bensouda ‘s obtaining a successful conviction resting on his financial and property records.

All the records, according to Ms Bensouda, have not been handed over, though the government, through Attorney-General Githu Muigai, stated it had done its best to comply.