The trial of Deputy President William Ruto and Joshua Sang has hit a snag after the prosecution Thursday applied for the withdrawal of a witness.
The witness P-0025, described previously as key to the prosecution, was withdrawn Wednesday evening just hours before he was due to take to the stand.
“Dear Chamber, dear counsel, I regret to inform the Chamber, parties and participants that, following the witness preparation session with witness P-0025 held on 14 May, the Prosecution has decided to withdraw him as a Prosecution witness,” an email of May 14 from senior trial lawyer Anton Steynberg announcing the prosecution’s decision states .
Mr Steynberg conceded that during the customary witness preparations before one takes the stand to begin testimony, the prosecution discovered that witness P-0025 unable to accurately recall, or give a coherent and consistent account of, critical parts of the evidence the prosecution had intended to lead from this witness.
“In the circumstances, the Prosecution does not consider that the witness’s evidence is sufficiently relevant or reliable to call as a Prosecution witness, particularly bearing in mind the limited court time available to the Prosecution and the consequent need to present the most cogent and reliable evidence. The Prosecution of course has no objection if the Defence wishes to consult with the witness with a view to calling him during the Defence case (subject to the provisions of the Protocol). I apologise to the Chamber and parties for the inconvenience occasioned by the late withdrawal of this witness,” Mr Steynberg said in the e-mail.
During the oral application Thursday, Mr Steynberg also informed the court of the prosecution’s application to have the current session deferred until the first week of June when the next prosecution witness 405 will be available.
The application by the prosecution to withdraw the witness attracted a debate with Mr Ruto’s lead defence counsel Karim Khan repeating that the action was a proof that the prosecution’s case against his client has a “rotten under-belly”.
According to Mr Khan, the witness was referred to 25 times in the pre-trial ruling and 17 times in the prosecution’s pre-trial brief to demonstrate his significance to the case.
P-0025 who is already in The Hague is understood to have told the prosecution that he was present during one or many of the planning meetings of the 2007/08 post-election violence at Mr Ruto’s Sugoi home.
According to Mr Khan, the credibility of the witness, whom he described as a ‘master chef’ has been in question as he was purportedly a conduit for prosecution to obtain five other witnesses. Mr Khan further alleged that the witness had been procured by among others USAID and other foreign embassies that he did not disclose.
“Witnesses are duping the OTP. Witnesses have come through hands of individuals especially this one P-0025,” said Mr Khan.
“As such it is premature to grant the prosecution leave to withdraw this witness,” said Mr Khan.
The Ruto defence team requested that the proceedings be adjourned until Friday 2pm after the prosecution discloses certain materials to the defence before the witness is withdrawn. The materials the defence wants are the video of the witness preparation, an update of the schedule of expenses and benefits asked for or conferred to the witness since October 2013 and any discussion, if any on agreements taken between the Victims and Witnesses Unit and the Office of the Prosecutor on the benefits for the witness after he testifies.
Mr Steynberg however said the request by the defence for video for witness preparation was unwarranted unless there is an allegation of witness coaching. He also said that the prosecution has not made further disbursements to the witness since the last disclosure in October 2013.
The prosecution, Mr Steynberg said, will however be ready to share with the defence the proofing notes of the witness.
On their part, former radio journalist Joshua Sang’s defence team agreed with the prosecution to drop the witness on the assurance that he will not be brought back again in the course of the trial, an assurance Mr Steynberg gave.
“We submit it is the right decision to withdraw this witness. We regret though that this happened at the eleventh hour but it is at the discretion of the prosecution to decide who to call or not to call. If they withdraw him not, that’s it. They should not recall him again,” said Ms Caroline Buisman, Sang’s lawyer.
The victim’s lawyer Wilfred Nderitu also agreed with Ms Buisman that the discretion to call or not to call a witness remained with the calling party and as such the prosecution should not be compelled to produce P-0025 after disclosing that they no longer intended to rely on his testimony.
The chamber is due to make a decision Thursday afternoon on the application by the prosecution as well as the disclosure requests by the defence. In case the prosecution’s application for adjournment is granted, Mr Ruto will be free to return home much earlier than earlier planned.
Mr Ruto is required to be in the court for five days following a long recess though the chamber can also order his presence in the court any time. He arrived in The Hague on Wednesday May 14 and was expected to stay until mid-next week had P-0025 testified