Trial judges of the International Criminal (ICC) have declined to declare Witness 604 a hostile prosecution witness, following an application by the prosecution and submissions by defense lawyers.

Presiding Judge Chile Eboe-Osuji said on Friday that Trial Chamber V(a) was of the view the prosecution needed to question the witness further to explore the true and false parts of statements Witness 604 made to the Office of the Prosecutor (OTP). Judge Eboe-Osuji said the chamber’s decision did not mean the prosecution could not, at a later stage, apply again for the witness to be declared hostile.

The witness is one of a group of nine people the court has ordered to testify under subpoena, at the request of the prosecution, after they disavowed earlier statements supporting the prosecution case. The reversals came against a background of court concerns over witness tampering and intimidation in Kenya. 

The decision means that the prosecution will continue to ask neutral questions as is the case when prosecutors are leading a normal examination-in-chief. This also means the prosecution cannot cross-examine the witness or suggest answers in the questions it asks of the witness, as would have been the case if the witness had been declared hostile.

The judges made their decision following an application Senior Trial Lawyer Anton Steynberg made on Thursday. Karim Khan, the lawyer for one of the accused, Deputy President William Samoei Ruto, said the application was poorly founded in law and was premature. Khan made his submission and then the court adjourned for the day.

Caroline Buisman, the lawyer for the other accused, former journalist Joshua arap Sang, made her submission on the matter on Friday. She said the Sang defense wanted the application rejected. Buisman said the prosecution had not clearly shown what had changed in the witness’s account to warrant him being declared hostile.

For a witness to be declared hostile, “there must be a wholesale change of account. It is not sufficient if someone is evasive. It is not sufficient that someone departs from the account,” Buisman said.

Witness 604 is testifying in the trial Ruto and Sang who each face three counts of crimes against humanity for their alleged roles in the violence that shook Kenya after the December 2007 presidential election. Witness 604 is testifying under subpoena via video link from an undisclosed location in Nairobi.

Steynberg resumed his questioning of Witness 604 on Friday morning by asking him about the August 11, 2014 affidavit he swore. He asked the witness whether the affidavit gave the reasons why he had made false statements to prosecution investigators and whether it was accurate. Witness 604 replied in the affirmative. The witness, however, also clarified that his affidavit did not go into detail about what was false or true in the statements he made to the OTP because he did not have those statements with him to make reference to.

Steynberg then asked the witness a series of questions about another prosecution witness whom Witness 604 had said on Thursday had asked him to testify at the trial and assured him his children’s education would be paid for by the ICC and that he would be relocated outside Kenya.

On Friday, Witness 604, under questioning from Steynberg, added that the person who contacted him described the areas of testimony he needed to cover to ensure he became a prosecution witness. He said she told him he needed to talk about rallies he attended where Ruto or his allies spoke. Witness 604 also said she told him to claim he attended a meeting at Ruto’s home where plans were made to kill Kikuyus and that he should also testify about the violence that occurred in the Eldoret and Turbo areas.

Steynberg then asked him why this account about the other prosecution witness telling him about the benefits of testifying for the ICC prosecution and what to say was not included in his August 11 affidavit. Witness 604 remained silent. Steynberg repeated the question twice, and the witness still did not answer. At this point, the session had come up to the lunch break, and the witness was allowed to review his affidavit over the lunch break in preparation for the afternoon session.

When the hearing resumed after lunch, Witness 604 said his affidavit was “written in general” to explain why it did not have any detail about what he was told to tell the prosecution or what benefits he was told he could get for being a witness.

Steynberg then began asking the witness questions about the statement he made to the prosecution, going through it paragraph by paragraph. The area Steynberg asked the witness about was his observations about Ruto’s status in Kalenjin society. Witness 604 told the court Ruto was not the king of the Kalenjin or its most important leader at the time of the 2007 elections as was said in his statement to the prosecution. The witness also denied that those who opposed Ruto at the time were treated as outcasts and abused, as said in his statement to the prosecution.

Witness 604 also told the court he was not present at a meeting where threats were made against him because of his position, as had been said in his statement to the prosecution. He said he learned about the meeting through two people. He gave details about the two people in private session. The witness said he claimed to be present at the meeting to make his statement, “more concrete.”

Witness 604 will continue testifying on Monday.