, NAIROBI, Kenya, Sept 1 – International Criminal Court (ICC) judges on Monday ordered the 22nd witness in the case against Deputy President William Ruto and former broadcaster Joshua arap Sang to undergo a medical examination.
This was after the prosecution, Witness and Victims Unit (WVU) and his lawyer Gregory Mutai differed over the medical condition of the witness who claimed he was too depressed to begin testifying.
“The doctor has stated that the witness has some ailment and the witness should not go through a stressful situation. The trial of this nature is very stressful and it is our submission based on that doctor’s finding it may not be advisable for him to go through the rigours of trial at this time,” Mutai told the court as he listed reasons why the witness – who is still in Nairobi – should be given 21 days before testifying.
Presiding judge Chile Eboe-Osuji who reminded the lawyer that the witness was not on trial but was instead giving evidence, directed the WVU to subject the witness to a medical/psychological test to ascertain his state of wellbeing.
Led by Trial Attorney Anton Steynberg, the prosecution questioned the timing of the medical report which was submitted to the WVU on August 29, which he said was the first time they learnt that the witness was unwell.
The WVU also confirmed to the court that the witness did not complain of being unwell but learnt about his sickness when Mutai sent the medical report from a Kenyan doctor.
Steynberg also said the doctor – who is a General Practitioner (GP) was not a qualified psychologist as he based his analysis on subjective tests.
In seeking a deferral via video link from Nairobi, Mutai further explained to the court that the witness had not been given documents containing his testimony by the prosecution, which he accused of also allegedly withholding his travel documents.
“His travel documents were taken away from and were returned this morning just before his session began and the officers of the OTP had put him in a difficult situation and making too many calls to him. We believe that is why he is not in good condition to testify today,” Mutai alleged.
In defence, the prosecution said the passport was taken on August 3 from the witness for purposes of processing his visa but efforts to return it to him were futile after he failed to show up in several meetings planned ahead of the trial on Monday.
“The passport was taken for purposes of putting the visa. The witness gave his passport to an investigator who handed it over to the WVU on August 3. The OTP did not seize the passport but the witness voluntarily gave it,” he explained. He would have got his passport had he travelled for the meetings he was called to attend. The first opportunity to return the document was today. There were no implied threats but normal procedures,” Steynberg explained.
Mutai further asked for more time for a senior counsel to be admitted to represent the witness. READ: ICC witness in Ruto case to testify via video link.
In the first instance, Mutai had not been admitted as the witness counsel. He explained to the court that he had sent his application forms via email but the WVU said it never received such an application.
Judge Eboe-Osuji directed him to immediately make the application on Monday and also allowed the lawyer proposed by the witness as a senior counsel to make a similar application.
According to Mutai, they will need time to go through the statement given by the witness and also his affidavit in which he recanted his earlier evidence.
Steynberg assured Mutai that the prosecution will not seek for information that will incriminate the witness once he takes the stand to testify about the 2008-Post Election Violence.
“There will be no attempts to get evidence from the witness to self incriminate himself and we will not seek to persecute the witness. Nothing the witness will say will be used against him,” he pledged.
The prosecution, defence lawyers of Ruto and Sang were opposed to a prolonged deferral.
Karim Khan for Ruto said they were getting inconvenienced by repeated delays in the trial when he also complained that they had not been served with a list of appearance of the remaining witnesses.
The WVU said it was in the process of preparing the transmission files of three witnesses who the Government of Kenya had asked to testify before the court after an agreement between the court and Kenya.
“We have received summonses of three witnesses out of four. The WVU is in the process of preparing transmission filings. However the package was not complete and we are liaising with the Government of Kenya to consent to the complete package, that is why it there is a delay. We got the documents really late after working hours on 29th August,” WVU stated but promised to serve parties in the case with the updated list on Monday evening.
The trial resumes on Tuesday at 11am Kenyan time and the witness has been ordered to be present from the video location in Nairobi.