International Criminal Court Chief Prosecutor Fatou Bensouda wants ‘hostile’ witnesses in William Ruto case back

Fatou Bensouda, ICC Prosecutor (left) and James Stewart, ICC Deputy Prosecutor in The Hague Netherlands. [PHOTO: FILE/STANDARD]

International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda, is destined for difficult times in the case against Deputy President  William Ruto.

The prosecution, in what appears to be incidental admission that the evidence in their possession may not be sufficient to secure a conviction against the DP, has now filed a fresh application asking the chambers to allow her use prior statements from the six witnesses who had been declared hostile, as a part of her evidence against Ruto.

The prosecutor wants to have redacted written statements and transcripts of recorded interviews of the six be admitted in support of her charges against the DP.

“The Office of the Prosecutor requests the admission of the prior recorded testimony of (Redacted) witnesses: (Redacted) (collectively, the “Corrupted Witnesses” for the truth of their contents. These comprise written statements and transcripts of recorded interviews, and the annexes thereto,” the application made to the Trial Chamber V (A) judges read.

Bensouda, in her application, has admitted that the case she presented to the court might not be strong enough to pin down the United Republican party leader.

Reacting to this, Attorney General Githu Muigai, termed the application as ‘surprising’ and added that Kenya and other African delegations that negotiated the amendment in good faith would be seeking to be enjoined in the case.

“I would be very surprised if the prosecution has made such an application under the amended rule 68. At the State Parties Conference in 2013, it was made clear that the rule would not be used retroactively. And it was the understanding of the Kenyan delegation that the rule would not apply to the Kenyan case. If indeed such an application has been made by the prosecution, Kenya, and other members of the Africa delegation who negotiated the amendment in good faith, would be seeking to be enjoined in the case for purposes of placing before the court all the relevant material arising out of the negotiations,” he said.

In the application, which if declined could spell doom for Bensouda’s efforts,  the prosecutor told the court that she had opted to apply for their prior admissions to strengthen her basis that they had been influenced to recant their prior testimonies. “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,” Bensouda said in her application. The prosecutor submitted that the Chamber would be able to freely assess the probative value of the witnesses’ evidence in light of the totality of the other evidence admitted at trial.

She held that the redacted statement had some truth in them and that they had been induced to recant the same.

However, the witnesses denied during their testimony that their withdrawal and subsequent recantation were as the result of interference.

On his part, National Assembly legal Affairs committee chairman Samuel Chepkonga (Ainabkoi) dismissed the application as a desperate attempt by the prosecutor to pump air into a dead case.

“There is no evidence that can be produced when the witness has rejected or refused to appear. Such evidence cannot be verified,” he said. “Any evidence must be tested in court. We cannot collect unverified and untested statements from the field and try to ship them to court.”

Mr Chepkonga said the application was wasting the court’s time and funds donated by countries that maintain the ICC. He said the prosecution was using the back-door to try to prove a case that had “collapsed” a long time ago.

The DP was tried in the Netherlands based court for alleged crimes against humanity. He, however, denied the charges that include murder and persecution for allegedly orchestrating attacks that led to the 2007/08 post-election violence.