But that can happen only ‘if the witness who gave the previously recorded testimony is not present before the Trial Chamber’ and that ‘both the Prosecutor and the Defence had the opportunity to examine the witness during the recording’.
Secondly, Rule 68 can be applied ‘if the witness who gave the previously recorded testimony is present before the Trial Chamber’ and that ‘he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the Defence and the Chamber have the opportunity to examine the witness during the proceedings.’
In response to the prosecutor’s application, Attorney General Githu Muigai on Wednesday sent an application to Trial Chamber V (a) asking to be allowed as amicus curie to explain circumstances under which Rule 68 was amended.
“We sought leave to intervene in an application we sent today. We are waiting for a decision so that we can make a substantive application intended to explain what was happening when the rule was amended. The common understanding was not to be applied retrospectively i.e. on the current cases,” he told Capital FM News.
The trial against Ruto and Sang commenced on September 10, 2013 and so far 29 witnesses have testified before the court.
It was unclear if the 30th witness who failed to show up on many occasions will still testify or not.
Trial Chamber V (a) which is hearing the case against the two, summoned nine witnesses to testify after they said they were no longer willing to testify.
After the summonses to appear, some of them agreed to testify but recanted their evidence while others stood by their initial statements and alleged that they had been intimidated to recant their evidence.
Those who recanted were declared hostile for diverting from their initial testimonies.
READ: Another witness declared hostile at the ICC
Ruto and Sang are accused as in-direct co-perpetrators who planned attacks in the Rift Valley during the 2007-8 Post Election Violence.
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