Senior Trial Attorney Anton Steynberg told the Court on Friday that witness P032 was not going to be available to the Court until next year /DPPS
This is after the prosecution admitted on Friday that it was not in a position to call any one of the three witnesses, who had been listed to take up the stand after witness P0535 completed his testimony, as initially indicated due to a variety of reasons.
It was only Thursday when the trial resumed with witness P0535 giving an account of events that transpired at the height of the post election violence and by late Friday the witness had concluded his testimony.
However there was no other prosecution witness to call next.
“It is unfortunate that we cannot have another witness. We will not be ordering the calling of witness P0128 or P0409 in light of the submissions and difficulties we have heard from the Prosecution and the Defence of Mr Ruto,” said Trial Chamber V(a) Presiding Judge Chile Eboe-Osuji.
Senior Trial Attorney Anton Steynberg had eearlier told the Court that witness P032 was not going to be available to the Court until next year while witnesses P0128 and P0409 were available but only P0409 was available to travel immediately.
But even if P0409 had traveled to The Hague immediately, the earliest he could take the stand was next Wednesday which meant that the trial would go past the initial November 29 closing day.
Witness P0128 on the other hand would not be able to testify before next Friday because the prosecution required time to prepare him/her and because this witness could not be immediately available.
“Those are it seems our choices Your Honour and whatever the Court directs we will follow that procedure,” explained Steynberg.
Ruto’s lead Counsel Karim Khan however said that witnesses P0128 and P0409 adversely mentioned his client and it would be unfair to ambush the Defence with their testimonies.
Khan argued that these two witnesses had been listed among the last prosecution witnesses to be called and bringing their names up the list would be unfair to the Defence preparations.
He instead proposed that the prosecution interrogates either of these witnesses and then have them come back to the Court for examination by the Defence but the prosecution rejected this suggestion saying it did not want to break a witness’s testimony.
“I must be in a position to adequately confront these witnesses and I am not unfortunately. And it is not for want of trying but because of change of witness orders, change of the Court’s calender and in the end it would be unfair to require us to deal with witnesses that we were not required to deal with yet,” he said.
Khan had at the same time asked the Court to direct the prosecution to make available a list of its next witnesses so that the Defence could have an easier time planning its case.
Steynberg however said that it would be a bit difficult to do so.
“Unfortunately Your Honor for logistical reasons the sessions and the timing do affect witnesses who can come because of travel times and preparation times,” he explained.
As a result of the developments, Judge Eboe-Osuji directed that the trial against Ruto and Sang would have to be adjourned after the current witness before resuming on January 13 2014.
He however warned both the Defence and the Prosecution against putting the Court in an akward position saying they had to be prepared for any eventualities.
“We were supposed to be in recess now but because of the adjournment of the Kenyatta case, we tried to use the time that ahs become available to make more progress in the current case. Now we find ourselves in this predicament and I hope that in future we should always have back up,” he said.
Judge Eboe-Osuji also noted the difficulties that the lack of preparedness had caused to the Court explaining that after January 13, the trial against Ruto and Sang would only be able to proceed for three weeks before breaking so as to give time to President Uhuru Kenyatta’s trial which starts on February 5 2014.
The trial against Ruto and Sang resumed on November 21 after the trial against Kenyatta was postponed and the prosecution had indicated that it would only take about one day to examine the current witness and conclude by Friday.
Sang’s and Ruto’s trial was meant to conclude on November 1 but was pushed to November 8 to allow the Court catch up on lost time.
After Kenyatta’s trial was postponed, new dates were set in the Ruto and Sang trial such that after November 8, their trial would resume on November 21 and break for Christmas on November 29.
The Court had also hoped to listen to the testimony of two witnesses during this period but with the turn of events, the Court will only deal with the current witness.
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