Wednesday, January 16, 2013

RUTO APPEALS OVER WITNESS COACHING AT ICC



TUESDAY, JANUARY 15, 2013 - 00:00
 -- BY OLIVER MATHENGE
ELDORET North MP William Ruto and his co-accused radio presenter Joshua Sang have challenged a decision by ICC judges allowing Chief Prosecutor Fatou Bensouda to meet her witnesses 24 hours before they testify.
They believe that this would allow Bensouda to 'coach' witnesses in what to say. Their trial on charges of crimes against humanity is due to begin on April 10 in the Hague.
Last week the ICC judges ruled that “it is neither practical nor reasonable to prohibit pre-testimony meetings between parties and the witnesses they will call to testify at trial” up to 24 hours prior to their testimony.
Ruto and Sang's lawyers have now identified three areas where they say that the judges erred and which they want to challenge at the ICC Appeals Chamber.
“The Decision was arrived at in an unfair manner (i.e. without hearing from the defence) and its consequences, if put into practice, would result in unfair proceedings for the accused. This would impact on the time and preparation of the defence if they were now to have to take full and proper statements from all of its witnesses; something its current resources do not allow it to do,” Ruto and Sang argue.
They also said that the judges departed from the ICC Witness Familiarization Protocol that prohibits contact between the witness and the ' calling party' after the witness arrives to give evidence.
Ruto and Sang's lawyers also say that the judges erred in finding that “judicious witness preparation aimed at clarifying a witness’s evidence" could be “carried out with full respect for the rights of the accused.”
“The reality is that witness preparation both enhances efficacy and almost inevitably produces new information requiring disclosure. The defence submits that it is not fair for the accused to receive late or rolling disclosure as the trial progresses,” Ruto and Sang said in their application.
They added that late disclosure of information may result in lengthy adjournments which delay the trial and prejudice to their right to a speedy proceeding.
Bensouda has already indicated the trials of Ruto and Sang along with Uhuru Kenyatta and Francis Muthaura are likely to take at least two years and to stretch into 2015 without allowing for any procedural delays.
They also argued that the judges should have sought their views on whether the preparation sessions could be conducted after witness statements have been disclosed to the opposing side.
“Ordinarily at the ICC, the defence has no obligation to take or disclose witness statements. Does this Protocol now imply that the defence would only have the right to a witness prepping session if it first agreed to take and disclose witness statements?” Ruto and Sang asked.
They add that this would “unfairly force” them to chose which procedure it wanted to adopt – the disclosure of witness statements so that it could prep its witnesses, or the freedom of not taking and disclosing witness statements, and therefore forfeiting the opportunity to prep its witnesses.
They also questioned the judges’ assertion that the parties must video record their witness prepping sessions. The judges in their initial ruling had advised Ruto and Sang that they would be able to see if there was any improper 'coaching' by checking the video record of the sessions if necessary.
However, Ruto and Sang argued that the defence is not obliged to record witness interviews under the Rome Statute. “Presumably this is because the accused has a right against self‐incrimination, which could theoretically be breached if the defence were required to record and disclose witness prepping sessions,” Ruto and Sang said.
The two argue that if these provisions were put into place, they may have to disclose more than they are obliged to. “Thus the appearance of a trial, which respects the rights of the accused, may be tainted,” the application read.

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