On April 17, the three-judge panel hearing the case against William Ruto and former broadcaster Joshua arap Sang ruled by a two-to-one majority that the witnesses should appear before the court via video-link or at an agreed location in Kenya. The ICC is unable to force witnesses to travel to The Hague to testify in court.
The judges asked the government in Nairobi to employ “all means available under the laws of Kenya” to make sure the witnesses gave evidence.
Their decision may become a further test of the Kenyan authorities’ willingness to cooperate with the ICC. It remains unclear, however, whether the move will actually help prosecutors to strengthen their case.
Ruto and Sang are being tried on charges of crimes against humanity – including murder, persecution and forcible population transfer – that relate to the violence that followed a disputed presidential poll in December 2007. At least 1,100 people lost their lives and 650,000 others were forced from their homes during two months of political and ethnic bloodshed.
President Uhuru Kenyatta is also being prosecuted in a separate case relating to the post-election unrest.
The witnesses summoned to give evidence have been afforded protective measures and are known only by the reference codes P-0015, P-0016, P-0336, P-0397, P-0516, P-0524, P-0495 and P-0323.
The decision followed a prosecution request in December asking judges to ensure that the witnesses testified and to instruct the Kenyan government to support the move.
According to prosecutors, the witnesses had previously given statements describing meetings which they attended before the elections where violence was planned and Ruto gave out weapons and money. The witnesses also described Sang’s radio programmes on Kass FM in which they said he incited violence.
Prosecutors say that after the witnesses’ identities were disclosed to the defence last year, they either declined to testify or stopped communicating with the Office of the Prosecutor (OTP). Some of them subsequently accused the OTP of bribery and of coaching witnesses.
In seeking the witnesses’ testimony, judges ruled that the Kenyan government had “an obligation to cooperate fully with the court through serving the subpoenas to the witnesses and by assisting in compelling their attendance before the (judges) by the use of compulsory measures as necessary”.
The judges said it was essential for the court to be able to summon witnesses, otherwise it would be a “phantom” institution. They said the states that have signed up to the ICC “must be presumed to have created a court with every necessary competence, power, ability and capability to exercise its functions and fulfil its mandate in an effective way. These include the power to subpoena witnesses.”