THE HAGUE

 
The ICC case against Deputy President William Ruto and radio journalist Joshua arap Sang resumes on an uncertain note today after a one-month break. Here is a recap of the witnesses who have featured in the case so far.
By a Nairobi-based reporter for The Hague Trials Kenya
The session - expected to run until 4 October – will feature nine uncooperative prosecution witnesses who are expected to testify from Kenya via video-link. Although the government confirmed that it served all the witnesses with summonses as required by the ICC, it is not clear whether the witnesses have all confirmed that they will indeed testify.
On April 17, trial judges Chile Eboe-Osuji and Robert Fremr ordered that Witness 15, 16, 336, 397, 516, 524, 495 and 323 should appear before the court. According to this decision - in which Judge Olga Herrera Carbuccia dissented – Kenya had the obligation to facilitate (“by way of a compulsory measure”) their appearance and security throughout the preparation and duration of their testimonies. Witness 15, who was left out of the list, is also expected to testify at this session.
The eight summoned witnesses had previously provided the ICC prosecution with statements which allegedly contained “highly relevant potential evidence” for the Ruto and Sang trial. However, according to the prosecution, in spite of various protective measures, the eight had turned hostile and were no longer willing to cooperate.
For instance, Witness 15 had told the prosecution that he participated in 11 planning meetings - attended by Ruto - in which procurement of arms, selection of field commanders and other logistics were discussed. This witness allegedly participated in attacks on Yamumbi, Eldoret and could describe Sang’s involvement in the commissioning of those crimes.
Witness 16 allegedly attended two planning meetings with Ruto: one on 15 October 2007 in Kaptabee and the other on 14 December 2007 in Ruto’s Sugoi home. The witness reportedly also gave a first-hand account of his participation in the attack on Turbo town.
While confirming the charges against Ruto in early 2012, the ICC judges said that given the evidence, Ruto hosted a series of meetings, some at his Sugoi house where violence was planned. That in fact, the meetings covered the hierarchy of commanders, identification of targets, purchase of weapons, transport arrangements and reward systems to pay off the youth. It also confirmed that Ruto was the defacto leader of the Kalenjin community and that he appeared to have been the leader of the network which coordinated the violence in the Rift Valley region.
With regards to Sang’s involvement in the PEV, the judges stated that, given the evidence, he placed his radio show at the disposal of the organizers of the violence. In particular, it indicated that Sang advertised their meetings and that he himself fanned violence by spreading “hate messages explicitly revealing [the] desire to expel Kikuyus.”
In spite of the efforts by Ruto and Sang’s defence teams and the Kenyan government to opposed the subpoena ruling, on June 17, a presiding judge in the appeal, Akua Kuenyehia, refused to suspend the April decision to subpoena the eight witnesses. The appellate decision is still pending.
The ICC trial of Ruto and Sang has faced a number of challenges since its commencement last year, most notably being, the persistent breaks, initially caused by time constraints because of Ruto’s "extraordinary" duties in Kenya. This problem has since been solved through the amendment of the Rules of Procedure and Evidence to accommodate his circumstances.
Another serious challenge has been the withdrawal of witnesses. Although Bensouda had initially planned to call 40 witnesses, she had only called 21 when the case took a break in July.
When the case started, the first witness to take the stand was Witness 536. She testified about the arson attack on Kiambaa church and provided evidence on the organization of the attacks. Various other witnesses who talked about the Kiambaa arson also testified about the organized attackers who donned distinct attire and painted faces.
The second witness  - Witness 326 - placed Ruto at the apex of the opposition leadership in the Rift Valley region. He said Ruto was the ODM pentagon member representing the Rift Valley area, and this placed him in an unparalleled power position. In essence, the witness linked Ruto’s ODM party to the violence by testifying about how the violence was funded.
The fourth witness’s - Witness 376 - testimony concerned Ruto’s alleged use of the term “madoadoa” which, allegedly, incited the Kalenjin youth against the Kikuyu community in the Rift Valley region.
The twelfth witness also corroborated the “madoadoa” claims by testifying that he attended an ODM rally at the Nandi Hills Stadium in Kapchorua around October 2007, where Ruto allegedly asked the Kalenjin people present to uproot the “trees” planted in their midst by departing colonialists.
[A summary the twelfth witness' testimony: Witness says Ruto and Kosgey repeated calls to evict non-Kalenjins from the Rift Valley]
Various other witnesses linked Ruto’s associates to the violence. The fifteenth witness said that Councillor Sammy Ruto - who had won the Kimumu ward electoral seat in Eldoret on an ODM ticket - moved around the area in a celebratory convoy asking Kikuyus to leave for Othaya, the birthplace of former President Mwai Kibaki.
Another witness - Witness 613 - named Ruto’s personal assistant, Farouk Kibet, as one of the people who attended a political meeting held at Ruto’s Sugoi home. This meeting features prominently in the prosecution claims against Ruto.
During the previous session, the last witness to take the stand was former Commission of Inquiry into Post-Election Violence (CIPEV) Commissioner Gavin Alistair McFadyen. Through him, the court introduced the CIPEV report, popularly known as Waki Report, as evidence.
The report is reputed to have been a sincere and honest interrogation of Kenya’s collective conscience following the post-election violence of 2007/8. Before the commission was formed, there was a broad consensus among the warring political sides and the strong support continued until the report came out.
The report’s supporting evidence and a secret envelope containing lists of the key perpetrators of the violence were handed over to former ICC Prosecutor Luis Moreno Ocampo who commenced the Kenya ICC cases. According to McFyden, Ruto's name was in the secret envelope.Through McFadyen, the prosecution also introduced other related documents received as exhibits during the Waki inquiry.
Other than the nine witnesses scheduled to testify in this session, it is unlikely that ICC prosecutor Bensouda has other witnesses in her cards. Once she wraps up her presentation of the evidence, the defence will get a chance to give their side of the story.
But as the judges have ruled before, the defence can opt to move a no-case to answer motion before the court. Recently, the judges informed the defence about the criteria for such an application.
Lead image: A photo motage of ICC prosecutor Fatou Bensouda (L) (photo: Robin van Lonkhuijsen/Pool), Deputy President William Ruto (R above) (photo: Sophie van Leeuwen/The Hague Trials Kenya) and Joshua Sang (R below) (photo: Sophie van Leeuwen/The Hague Trials Kenya)
[This article was modified on 3 September 2014 to correct the identity of one of the witnesses. The earlier version indicated that one of the witnesses, "423", was among those summoned to appear before the Trial Chamber. The identity of this witness has been corrected to "323".]