International Criminal Court Chief Prosecutor Fatou Bensouda's headache as 'star witness' refuses to testify

International Criminal Court Chief Prosecutor Fatou Besouda

International Criminal Court (ICC) chief prosecutor Fatou Besouda could be headed for yet another embarrassing legal duel, this time against Deputy President William Ruto after her last witness, referred by the prosecution as ‘the star witness’, refused to testify.

Bensouda’s hope for a successful prosecution now hangs on a thread of an application she has filed seeking to be allowed to use statements of witnesses who have either recanted their evidence or refused to take the witness stand.

In her application, Bensouda agrees that in absence of the said statements, the prosecution would be deprived of critical evidence necessary to push the prosecution forward.

Specifically, the prosecution has explained to the court that if the statements are not admitted they would not have sufficient evidence against the DP.

Efforts to have the witness testify on Thursday became futile which effectively means that prosecution’s bubble could finally bust should the court disallow the only hope the prosecution is relying on; an application to have his written statement and those of other hostile witnesses admitted as evidence.

New turn

The case could take a new turn before July 16, when the court hopes to have determined whether or not the statements should be admitted.

The Office of the Prosecutor (OTP) wants to be allowed to use prior statements recorded by witnesses who recanted them in court.

The OTP is relying, on Rule 68 of the ICC rules of evidence which was amended at a meeting of the Assembly of State Parties (ASP) on November 28, 2013, to facilitate the use of prior recorded testimony in trial.

Attorney General Githu Muigai told The Standard on Saturday a fortnight ago that the application by the prosecutor is headed for an imminent collapse because it was clear that the said rule 68 as amended by state parties would not apply retroactively.

Ruto and radio journalist Joshua Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed during the 2007-2008 post-election violence.

Neither DP Ruto nor Mr Sang will be required to be physically present when the court will hear presentations on rule 68.

Bensouda says she wants the prior recorded testimony admitted for the truth of their contents. They include written statements and transcripts of recorded interviews, and other documents.

About 16 of 42 prosecution witnesses withdrew their testimonies and stopped cooperating with the OTP.

Some recanted their statements which the OTP intended to use, claiming they had been influenced to record them. Others refused to testify, citing threats, intimidation and fear of reprisals.

The chamber however allowed the OTP to have some of them compelled to testify and a number of them were declared hostile when they disowned their statements in court.

The last witness has for the past several weeks declined to testify in court opting to keep quiet.

Last month he told the court that he was unwell and would not testify.

The witness has been appearing before the judges at The Hague court via video link from another location within Netherlands.

His last appearance in court was on Thursday when he refused to testify.

The defense team has opposed Bensouda’s application to have the witness statements admitted saying Rule 68 was amended when the trial began and could not apply retrospectively.

They want the Chamber to reject the request to use the statements.

“Our hope or aim is to render our decision on the Rule 68 application before the beginning of this summer recess, 16 July this year,” said presiding judge Eboe Osuji.