“In a really practical sense it is not clear what follows from this,” Duffy said. “I think it is a good step in terms of the court saying it has the power to do this and that could be important for other cases, for
prosecution and defence witnesses, but it doesn’t necessarily follow that somehow the prosecution is going to be able to mount an effective case (against Ruto and Sang) because of this decision.”
The testimony given by these witnesses is likely to present a number of challenges to judges at the ICC, who will have to evaluate its merits carefully in light of their known reluctance to appear.
“If a witness gives one version of a story and then recants that, or recants part of that, there are serious issues of credibility.” Duffy said. “So there are going to be major issues for the judges in relying on the whole of the evidence or even part of it.”
TEST OF GOVERNMENT COOPERATION
Ruto’s lawyers opposed the prosecution’s bid to summon the witnesses on the grounds that it was not the Kenyan government’s responsibility to enforce a request for a witness to give evidence.
But they have previously expressed concern that witnesses refused to testify in the case, and said they would support efforts to bring this evidence before the court.
Much now depends on whether the Kenyan government is prepared to comply with the judges’ request. Its cooperation has frequently been called into question since the ICC began its investigation in Kenya.
Cyprian Nyamwamu, director of the Future of Kenya foundation in Nairobi, told IWPR that the ruling would be a “big test” of cooperation with the ICC.
This latest ruling follows the March 31 decision in the Kenyatta case in which judges urged the government to cooperate with prosecutors. The OTP had asked judges to make a finding of non-compliance against the Kenyan government and report the matter to the court’s 122 member states, known as the Assembly of States Parties.
Kenyan attorney general Githu Muigai told judges in February that domestic law prevented the authorities from compelling a witness to testify.
“These persons reserve the right to voluntarily comply with the summons or refuse to do so,” Muigai told the bench during a court meeting to discuss the issue.
In last week’s ruling, however, judges noted that Muigai had not pointed to any national law that prevented the authorities from assisting in compelling a witness to testify.
For Haron Ndubi, executive director of Haki Focus, a public policy organisation in Nairobi, the issue is one of political will.
“The law is the law,” he told IWPR. “The issue is will the government of Kenya comply and cooperate with ICC in terms of facilitating them (witnesses) to move to ICC to testify?”
IWPR’s Africa Editor, Simon Jennings, contributed to this article.
(This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation)
About The Author
