It has been a week of mixed fortunes for the prosecution in Kenyan lawyer Paul Gicheru’s case at the International Criminal Court, with the judge rejecting some of its applications and granting others.
Trial Chamber III ruled on three applications the Office of the Prosecutor (OTP) had made under Rule 68 (on prior recorded testimony) of the ICC’s Rules of Procedure and Evidence. The prosecution had asked Judge Miatta Maria Samba to admit the testimony of eight witnesses that had been recorded for the original case against William Ruto and Joshua Sang, which later collapsed when witnesses withdrew. Gicheru has been charged with witness interference in the case.
In three rulings dated between December 14 and 15, the judge allowed the prior recorded testimony of four witnesses, rejected three others, admitted one statement under a different rule, and granted the prosecution’s request to extend a deadline.
The first ruling, dated December 14, rejected the prosecution’s application to admit the prior recorded testimony of P-0495, saying the prosecution had failed to make all reasonable efforts to secure the witness’s court attendance. At first, the OTP had said it had been unable to locate the witness since the time he gave testimony in 2014. The prosecution later filed an addendum, explaining that after the filing of the request, P-0495 had contacted the prosecution.
The prosecutor said after meeting with the witness “…to establish his willingness to cooperate with the court, including by testifying voluntarily at trial, and to obtain updated information…” the witness’s counsel had said his client was unlikely to testify, although he had maintained the evidence he provided during his testimony in the Ruto and Sang case.
“Despite P-0495 initially stating that he would be prepared to testify in the Gicheru case, his counsel subsequently revised this position and advised the prosecution that the witness would be unlikely to testify willingly,” said Deputy Prosecutor James Stewart in his addendum dated December 2.
The prosecution argued that although there was a possibility that P-0495’s appearance before the court could be secured by means of summons, it was certain that even if he were to testify, he would again fail to give evidence with respect to material facts.
In its response of December 10, the defence argued that the prosecution had presented “no compelling or rational reason why it could not request Trial Chamber III to request the Government of Kenya to locate and serve a summons to secure P-0495’s attendance”.
The court agreed with the contention of Michael Karnavas, Gicheru’s defence lawyer.
“In respect of whether P-0495 has failed to attend in the present case, the chamber finds that the prosecution has not used all reasonable efforts at its disposal to obtain P-0495’s attendance, this includes requesting a summons for his attendance,” Trial Chamber III’s Judge Samba said.
The judge said the fact that a witness has failed to attend or failed to give evidence in one case does not mean that he or she will fail to attend or give evidence in all cases. She added that, for the purpose of introducing prior recorded testimony in the case, the prosecution must satisfy the court that P-0495 has failed to attend as a witness in the present case and cannot rely on the witness’s failure to attend or give evidence in another case.
“Any anticipated failure to attend in this case is speculative and largely due to the prosecution not wishing to seek a summons for P0495’s attendance because he would, according to the prosecution, likely be hostile to the prosecution,” Judge Samba said.
Rejecting the request, she concluded: “The prosecution must, therefore, use all reasonable measures available to it to try and obtain P-0495’s attendance before seeking recourse to Rule 68(2)(d). It has not done so in the present proceedings, despite expressly acknowledging that requesting a summons is available to it. Accordingly, the chamber finds that the prosecution has not satisfied the first limb of Rule 68(2)(d) of the Rules.”
In the second ruling dated December 15, Judge Samba partially granted the prosecution’s request and allowed the introduction of the prior recorded testimony and associated materials of P-0734 and P-0735, P-0736, and P-0737. She rejected the remainder of the request – for the testimony of P-0731 and P-0732 – and declared P-0733’s report and associated material formally submitted. The judge also designated the Senior Legal Adviser of the Registry Legal Office, or any appropriate person delegated by him, to be the person authorised to witness declarations.
In another decision dated December 14, the court agreed to extend the deadline for the OTP to submit evidence and materials.
The prosecution had made a second supplementary request to add updated transcripts and translations after the November 15 deadline set by the court for the disclosure of all evidence and material on which the OTP intends to rely at trial and the list of all items it plans to submit as evidence during the trial.
In the second request filed on December 10, the prosecution was seeking a further variation of the disclosure deadline until December 13, 2021 to add “.. a limited number of revised transcriptions and translations of recently enhanced audio recordings…” to the list of evidence and the substitution of the additional material for the previous versions.
The prosecution explained that one item of the enhanced recording was omitted from the original transmission to the Language Services Unit (LSU) and was thus not included in the first extension request. The omitted item was identified on November 26 and sent to the LSU for urgent processing and the resulting revised transcriptions and translations subsequently registered on December 6.
It explained that the omission was as a result of an “oversight” and the material ought to have been included in its first extension request.
The prosecution noted that the additional material “is very limited in scope and content” with the original audio item and that all existing transcripts and translations were disclosed in full to the defence in January 2021. It suggested that the duplicative nature of the additional material means an extension to the disclosure deadline will not affect the rights of the defence to have adequate preparation time
While granting the request and extending the deadline for the submission of the materials to December 15, Judge Samba accepted the prosecution’s explanation about the oversight, although she blamed the OTP for “lack of due diligence” on its part. She said she had found no reason to question the prosecution’s submission that it acted “as expeditiously as possible” upon discovery of the error.