THE HAGUE: The International Criminal Court (ICC) will today make a crucial decision on the way forward in the trial of Deputy President William Ruto and radio broadcaster Joshua arap Sang.
The Trial Chamber v(a) will also hold a second status conference to deliberate on how to deal with a witness who has refused to testify.
Another status conference was held in a closed session Wednesday, during which the prosecution pleaded with the court for more time to get witness number 727 to testify.
Although defence lawyers did not oppose the application, they said the prosecution should not be given much time to get the witness who is already residing in The Netherlands.
The witness, who was summoned in February, was set to start testifying last Monday but failed to turn up, prompting hearing to be adjourned to Tuesday.
He did not turn up on Tuesday, prompting the judges' decision to hold the status conference.
Ruto and 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.
So far, 29 witnesses have testified in the case and witness 727 is expected to be the last to appear on the prosecution's side.
The outcome of today's status conference could move the trial to a new phase should the prosecution be forced to close its case if the reluctant witness is not compelled to testify.
As soon as the prosecution closes its case, the defence team will make submissions on why the two accused should be acquitted without being compelled to call their own witnesses. Earliest walk to freedom by Ruto and Sang may depend on whether the judges will grant the application or not.
The judges – Chile Eboe-Osuji (presiding), Olga Herrera Carbuccia and Robert Fremr – are also expected to assess whether the evidence adduced by the prosecution through witnesses and documents would be sufficient to convict the accused, were they to decide not to defend themselves at all.
The Chamber may choose to acquit one or both if the evidence is deemed insufficient.
But the judges may also decide to put them on their defence, generally meant to give them opportunity to give their side of the story and not necessarily indication of guilt.
Hearing of the defence witnesses could take up a better part of this year and next year and in the process, distract the DP from preparations for the 2017 General Election.
The charges against Ruto and Sang were confirmed by the Pre-Trial Chamber in January 2012 and the trial began on September 10, 2013.
Ruto has attended specific sessions as directed by the court but was excused from attending all the hearings to enable him carry on with his official duties as DP.
There are 628 people participating as victims in the case. They are represented by an appointed lawyer.
To prove its case, the prosecution has mainly relied on some victims, forensic experts and a number of witnesses who claim to have participated in the planning and the execution of the chaos in the North Rift.
Some eight witnesses withdrew their initial testimonies midstream, claiming they had been bribed and coached to implicate the two accused.
The Kenya government, however, summoned them to testify following an order of the Trial Chamber.
The prosecution claims the witnesses were bribed to drop their evidence. They allegedly stopped co-operating with the OTP after their identities were disclosed to the defence in accordance with the rules of the trial.
The defence argued that the witnesses shied away after realising their falsehood would be exposed in cross-examination.
Witness 727 was among those summoned to testify via video link. The court issued the summons after the prosecution submitted that the witness was crucial to unveiling of the truth about the post-election violence.
Before the mixed signals, the said witness had demanded that his family be relocated to an undisclosed country for their safety and security before he could testify.