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Compelling ICC witnesses to testify poses test – experts

WIDESPREAD WITNESS WITHDRAWALS

Several other prosecution witnesses scheduled to testify in the Ruto/Sang and Kenyatta cases have also withdrawn their evidence or admitted lying to investigators. Some have cited security fears for themselves and their families as reasons not to go to The Hague. (See Action Urged on ICC Witness Protection)

Last December, Prosecutor Fatou Bensouda was forced to request a delay to the start of Kenyatta’s trial after a witness recanted his testimony. That case is now scheduled to begin in October, after judges ordered the Kenyan authorities to provide evidence – including Kenyatta’s financial records – which prosecutors requested two years ago. SEE (Kenyan President’s Trial Adjourned Until October)

Prosecutors were forced to drop their case against a fourth defendant, Francis Muthaura, in March last year after a key witness said he had lied in his earlier statement.

Bensouda has repeatedly complained of widespread witness intimidation and interference in Kenya.

Clair Duffy, senior legal advisor at the International Bar Association (IBA) in The Hague, welcomed the decisions issued by ICC judges on the Ruto/Sang witnesses and the Kenyatta trial evidence.

“I think it is good to see the court finding some teeth on a couple of these cooperation issues,” she said. “In this decision and in the Kenyatta decision you can see the judges taking a bit of a stand on what it is going to require to fulfil the mandate that the states parties have given to it.”

The question now is what impact the new witness testimony will have on the prosecution case against Ruto and Sang.

Some justice experts have told IWPR that given the OTP’s past difficulties in getting witnesses to testify, the latest ruling is a step in the right direction.

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“The withdrawal of these witnesses had been a serious challenge for the prosecution,” Willis Otieno, a lawyer at Kenya’s High Court, told IWPR. “The (decision) presents a fresh opportunity for the (prosecutors) to re-write their case.

“It’s a very bold step by the court in terms of re-energising the case.”

Duffy offered a more cautious view, noting that the witnesses concerned had either informed the OTP that they no longer wanted to testify or had broken all contact with it. That could make it risky to put them on the stand. She pointed out that any prosecutor would be hesitant to question witnesses against their will as it was a “great unknown” what they would say.

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