THE ICC trial case against Deputy President William Ruto is in limbo, following the conclusion of evidence by the 21st and final prosecution witness, Gavin Alistair McFadyen.
McFadyen, a Commission of Inquiry into Post Election Violence (CIPEV) commissioner, took three days to give his testimony in the case. Through him, the prosecution introduced both the CIPEV (or Waki) Report and the Kenya National Commission on Human Rights Report and their related documents as part of the evidence.
McFadyen had health issues, which prompted the court to rush his testimony. The prosecution took two days to present its case through him. The two defence counsels, Katwa Kigen and Karim Khan, took a day.
The judges did not have any question for McFadyen. In the end, the prosecution was left with no other witnesses apart from nine who wish to pull out but are being compelled to appear by the judges.
“That’s the end of the witnesses we have for this segment. The Chamber would be adjourning and would advice the parties of when we next resume after the judicial recess,” presiding judge Chile Eboe-Osuji said on Friday.
The judicial recess is running from July 18 to August 11. Bensouda had originally planned to call about 40 witnesses. She has however ended up calling only 21, with some opting out and others disappearing from her radar.
If there are no more witnesses from the prosecution, Ruto and Sang will be free to apply for a “no-case-to-answer” motion, which, if successful, will mean that they do not have to present their evidence or witnesses.
Last Monday, there was a private session which took the whole day and was attended by the prosecution, defence counsel, the victims’ lawyer and Attorney General Githu Muigai.
The status conference was called following the decision by the Appeals Chamber not to suspend the implementation of a decision by the trial judges to force eight witnesses to testify.
The AG updated the judges on the steps necessary for the Kenyan government to have the witnesses testify, but maintained the previous stance.
Kenya has said the government cannot force unwilling witnesses to testify and Muigai has told the court the government can only pass on the orders to attend court.
The prosecutor had requested that the eight – Witness 15, Witness 16, Witness 336, Witness 397, Witness 516, Witness 524, Witness 495, and Witness 323 – be forced to testify.
According to Bensouda, the eight witnesses are now no longer cooperating or have informed the prosecution that they are no longer willing to testify. Ruto and Sang have already appealed the decision, which was made by two of three judges, and Kenya has made submissions in the appeal.