The defence counsels said the delays were costly and time consuming for the parties to travel to The Hague expecting the proceedings to continue only for the prosecution to notify them at the last minute that there are no witnesses to take to the stand as earlier scheduled.
Sang’s lawyer argued that there are seven witnesses who had written to the prosecution saying they were unwilling to testify yet the prosecution had not yet communicated to the defence over their withdrawal.
Senior Trial Attorney Anton Steynberg said the prosecution could not give the final list because the witnesses who had indicated that they were unwilling to testify could change their mind with time, as it happened with the 17th witness who was the only one who testified in the session that ended on Friday.
The witness declined to testify on Monday but agreed to give evidence on Wednesday though in private session.
“I do have some difficulty with the last request and that is that we have seen with certain witnesses who had indicated that they were unavailable that they do change their mind, the last witness was one case,” Steynberg explained.
The court further allowed the Witness and Victims Unit to release Witness P0025 who the prosecution had withdrawn after it found his evidence to lack credibility.
Khan had requested for the witness to be held at The Hague for questioning but after watching his video recording during the preparation session, he said he was no longer interested in questioning him since his evidence lacked credibility.
The defence teams expressed dismay with the manner in which the prosecution handled the evidence of the witness. They complained that it was unfair to use his evidence to confirm charges and even make extensive referrals to his evidence in the Pre-Trial brief only for it to withdraw him years after using his evidence to argue its case.
The Friday adjournment is not unique in the case against Ruto, Sang and President Uhuru Kenyatta.
Since the trial against Ruto and Sang began on September 10, 2013, the court has had to adjourn the trial a number of times over witness hitches.
Whereas the prosecution has held that witnesses have been intimidated and bribed not to testify before the court, the defence teams have blamed the prosecution for coaching witnesses and promising them financial benefits to motivate them to testify.
Last month, ICC ordered Kenya to compel eight witnesses in the case against Ruto and Sang to testify despite their communication to the court that they were unwilling to give evidence.
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