Chief Justice Dr. Willy Mutunga at the Kamiti Maximum Prison during the World Day Against Death Penalty
Kenya will adopt the use of prior recorded testimony in a judicial trial.
Under the Witness Protection Rules, 2015, set to come into force on November 23, both the defence and prosecution have an equal chance to request for prior-recorded audio or video testimony to be admitted into evidence.
Dr. Willy Mutunga, the Chief Justice gazetted the Witness Protection Rules, 2015 in October. This means recorded statements of witnesses will now be used without a witness having to attend court hearings.
“The court may allow the introduction of previously recorded audio or video evidence of a witness, or the transcript or other documented evidence of such testimony –
- If the witness who gave the previously recorded evidence is not present before the court, or both the prosecution and the defense had the opportunity to examine the witness during the recording; or
- If the witness who gave the previously recorded testimony is present before the court, does not object to the submission of the previously recorded testimony and the prosecution, the defence and the court have the opportunity to examine the witness during the proceeding.
Further, the courts will be able to appoint an intermediary to testify on behalf of a witness if the proceeding pending before any court and it appears to the court that it would expose any witness to undue mental stress, or suffering if the witness testifies at the proceeding.
In the Kenyan situation at the International Criminal Court, by majority, the judges granted the Prosecution’s Request to use into evidence the prior recorded testimony of five witnesses pursuant to Rule 68(2) (c) and (d) of the Rules of Procedure and Evidence, without prejudice to the weight, if any, which will be attached to them in the Chamber’s weighing of the evidence in the William Ruto and Joshua Sang cases.
The ruling followed an application by ICC Prosecutor Fatou Bensouda asking that the statements of 16 prosecution witnesses who had either recanted or refused to testify in court.
“The interests of justice would be best served by the introduction of their prior recorded testimony into the court record so as to prevent the accused from benefiting from crimes against the administration of justice committed on their behalf,” Bensouda had told the court.
“The Prior Recorded testimony is highly relevant to this case, since it contains the Corrupted Witnesses’ accounts concerning the PEV in the areas described in the Document Containing the Charges, the crimes that were committed, and the people responsible for this,” she had added.
Kenya is opposed to the rule and it is currently under judicial consideration by the Appeals Chamber in the Ruto/Sang trials.
Read: Setback for Kenyan efforts to debate use of prior testimony at ICC