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Kenyan ICC Case:Prosecution Witness 516 continues to falter under defense cross-examination

Defense lawyers asked Witness 516 whether prosecution investigators went to the location he had claimed to live in during the bloodshed that followed the December 2007 presidential poll.

On Wednesday the witness had told the International Criminal Court (ICC) that he lied about where he lived in his statement to the prosecution.


During his testimony that day he said he had lied about living in a place only identified by its pseudonym, location one. He said in late 2007 and early 2008 he lived in location three. He said he lied because it was part of an account he agreed to give to the prosecution on the advice of two men who assured him he would gain benefits for doing so.

Witness 516 is testifying in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang. They are on trial for their alleged roles in the violence that occurred in Kenya between December 2007 and February 2008. They each face three counts of crimes against humanity.

David Hooper, Ruto’s lawyer, asked Witness 516 on Friday if he knew prosecution investigators had been to the area of Turbo or location one, where he had claimed he lived. The witness said he did not know nor did the investigators tell him whether they did so during their interview with him.

Later, Caroline Buisman, who represents Sang, asked the witness whether prosecution investigators would have found him at location one if they had gone looking for him there. He said they would not have found him. She then asked him about a detail of a sketch he drew for the prosecution. She questioned him about a station for the Kenyan police’s paramilitary unit in Turbo that he had included in the sketch. Buisman said that the paramilitary unit did not have a station there and the witness knew this.

“Do you agree had the prosecution gone they would have easily discovered that the station did not exist?” asked Buisman.

“When I wrote my statement, the conflict [post-election violence] was over and these are things that I was told to say so I did not think that people were going to go there to investigate,” replied Witness 516.

Hooper questioned the witness for a good part of the day. Much of his questioning was done in private session, partly because he was asking the witness questions about “his personal circumstances.” In open court Hooper asked the witness what made him stop cooperating with the prosecution. Witness 516 said that after he and his family were relocated, his children started encountering problems and then he stopped receiving money from the prosecution. He said that is when he decided to stop cooperating with the prosecution.

Hooper said that he had a document that showed Witness 516 had received $2,647 from the prosecution. He clarified that he understood that the amount was not only cash, but included costs the prosecution paid for. Hooper did not state in open court what those costs were. Hooper asked the witness whether he remembered the total amount of money he received from the prosecution. Witness 516 said he could not remember. The rest of the questioning on this issue took place in private session.

When Hooper and Buisman concluded their cross-examination of Witness 516, senior trial lawyer Anton Steynberg asked the witness some questions in re-examination. He asked the witness about a notebook that came up during Hooper’s cross-examination.

Earlier in the day, Hooper read from the witness’ November 2012 statement in which he said he checked a notebook he had during his interview with prosecution investigators. Hooper then asked the witness why he referred to the notebook during the interview. The witness said that is where he had written notes from a meeting he had had in October 2012 with two men only identified in open court as persons one and three. In earlier testimony the witness had said these are the individuals who got him to give a statement to prosecution investigators.

Steynberg followed up and asked the witness whether among the diagrams in the notebook there was a sketch of the compound of a person only identified as number 12. The witness said no. He said he drew the sketch of that compound from memory. Steynberg asked him why he drew it from memory. The witness said it was because he was not supposed to have his notebook with him during the interview. Steynberg then asked twice why he was not supposed to have the notebook during the interview and the witness gave two separate reasons. The witness then later said that he had his notebook and other things with him during the interview and the investigators did not bother with the notebook.

Once Steynberg concluded his re-examination, Presiding Judge Chile Eboe-Osuji asked the lawyers whether any of them had any objection if Witness 516 was discharged from his subpoena. All of them said they had no objection. Judge Eboe-Osuji then informed Witness 516 he was discharged from court and his subpoena.

The witness is one of three witnesses who have testified before Trial Chamber V (a) under subpoena. The chamber declared all three – Witness 604, Witness 495 and Witness 516 –  hostile prosecution witnesses because in their testimony in court they had diverged “consistently and systematically” from their earlier statements to the prosecution. All three have testified via video link from an undisclosed location in Nairobi.

The three witnesses are also the first of a total of nine prosecution witnesses that the chamber ordered should be compelled to appear before it. The chamber made that decision after hearing submissions from all parties on a prosecution application on the matter. The prosecution applied to the chamber to issue subpoenas to the witnesses after they stopped cooperating with them last year and mid this year.

Maravi Post Reporter
Maravi Post Reporter
Op-Ed Columnists, Opinion contributors and one submissions are posted under this Author. In our By-lines we still give Credit to the right Author. However we stand by all reports posted by Maravi Post Reporter.
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