Deputy President William Ruto arrives at The Hague on May 14, 2014. His case has resumed. PHOTO | REBECCA NDUKU | DPPS
NATION MEDIA GROUP
The trial of Deputy President William
Ruto and Joshua Sang has hit a snag after the prosecution Thursday
applied for the withdrawal of a witness.
The witness
P-0025, described previously as key to the prosecution, was withdrawn
Wednesday evening just hours before he was due to take to the stand.
“Dear
Chamber, dear counsel, I regret to inform the Chamber, parties and
participants that, following the witness preparation session with
witness P-0025 held on 14 May, the Prosecution has decided to withdraw
him as a Prosecution witness,” an email of May 14 from senior trial
lawyer Anton Steynberg announcing the prosecution’s decision states .
Mr
Steynberg conceded that during the customary witness preparations
before one takes the stand to begin testimony, the prosecution
discovered that witness P-0025 unable to accurately recall, or give a
coherent and consistent account of, critical parts of the evidence the
prosecution had intended to lead from this witness.
“In
the circumstances, the Prosecution does not consider that the witness’s
evidence is sufficiently relevant or reliable to call as a Prosecution
witness, particularly bearing in mind the limited court time available
to the Prosecution and the consequent need to present the most cogent
and reliable evidence. The Prosecution of course has no objection if
the Defence wishes to consult with the witness with a view to calling
him during the Defence case (subject to the provisions of the Protocol).
I apologise to the Chamber and parties for the inconvenience occasioned
by the late withdrawal of this witness,” Mr Steynberg said in the
e-mail.
During the oral application Thursday, Mr
Steynberg also informed the court of the prosecution’s application to
have the current session deferred until the first week of June when the
next prosecution witness 405 will be available.
'ROTTEN UNDER-BELLY'
The
application by the prosecution to withdraw the witness attracted a
debate with Mr Ruto’s lead defence counsel Karim Khan repeating that the
action was a proof that the prosecution’s case against his client has a
“rotten under-belly”.
According to Mr Khan, the
witness was referred to 25 times in the pre-trial ruling and 17 times in
the prosecution’s pre-trial brief to demonstrate his significance to
the case.
P-0025 who is already in The Hague is
understood to have told the prosecution that he was present during one
or many of the planning meetings of the 2007/08 post-election violence
at Mr Ruto’s Sugoi home.
According to Mr Khan, the
credibility of the witness, whom he described as a ‘master chef’ has
been in question as he was purportedly a conduit for prosecution to
obtain five other witnesses. Mr Khan further alleged that the witness
had been procured by among others USAID and other foreign embassies that
he did not disclose.
“Witnesses are duping the OTP. Witnesses have come through hands of individuals especially this one P-0025,” said Mr Khan.
“As such it is premature to grant the prosecution leave to withdraw this witness,” said Mr Khan.
The
Ruto defence team requested that the proceedings be adjourned until
Friday 2pm after the prosecution discloses certain materials to the
defence before the witness is withdrawn. The materials the defence wants
are the video of the witness preparation, an update of the schedule of
expenses and benefits asked for or conferred to the witness since
October 2013 and any discussion, if any on agreements taken between the
Victims and Witnesses Unit and the Office of the Prosecutor on the
benefits for the witness after he testifies.
Mr
Steynberg however said the request by the defence for video for witness
preparation was unwarranted unless there is an allegation of witness
coaching. He also said that the prosecution has not made further
disbursements to the witness since the last disclosure in October 2013.
The prosecution, Mr Steynberg said, will however be ready to share with the defence the proofing notes of the witness.
On
their part, former radio journalist Joshua Sang’s defence team agreed
with the prosecution to drop the witness on the assurance that he will
not be brought back again in the course of the trial, an assurance Mr
Steynberg gave.
“We submit it is the right decision to
withdraw this witness. We regret though that this happened at the
eleventh hour but it is at the discretion of the prosecution to decide
who to call or not to call. If they withdraw him not, that’s it. They
should not recall him again,” said Ms Caroline Buisman, Sang’s lawyer.
The
victim’s lawyer Wilfred Nderitu also agreed with Ms Buisman that the
discretion to call or not to call a witness remained with the calling
party and as such the prosecution should not be compelled to produce
P-0025 after disclosing that they no longer intended to rely on his
testimony.
The chamber is due to make a decision
Thursday afternoon on the application by the prosecution as well as the
disclosure requests by the defence. In case the prosecution’s
application for adjournment is granted, Mr Ruto will be free to return
home much earlier than earlier planned.
Mr Ruto is
required to be in the court for five days following a long recess though
the chamber can also order his presence in the court any time. He
arrived in The Hague on Wednesday May 14 and was expected to stay until
mid-next week had P-0025 testified.
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