Judges have declared a prosecution witness hostile for the third time in the trial at the International Criminal Court (ICC) of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Trial Chamber V (a) said on Thursday it made its decision because Witness 516 had during his testimony over the past three days diverged “consistently and systematically” from the statement he gave the prosecution in November 2012.

“We feel called upon to explain that the factor of consistent and systematic divergence between testimony and previous statement is not a factor that floats in the air. It is a factor that necessarily takes its bearing from the central question that the court must answer in the case. In a criminal case that central question is a question of criminal responsibility of the accused person,” said Presiding Judge Chile Eboe-Osuji as he delivered the chamber’s decision on behalf of his fellow judges Olga Herrera Carbuccia and Robert Fremr.

The chamber announced its decision after the morning break, following an earlier application senior trial lawyer Anton Steynberg made. The legal representative for victims, Orchlon Narantsetseg, supported the prosecution’s application. Both defense teams for Ruto and Sang opposed the application.

Ruto and Sang are on trial on three counts each of crimes against humanity for their alleged roles in the violence that followed the December 2007 presidential election.

Witness 516 is also the third witness who is appearing before Trial Chamber V (a) under subpoena it issued to compel nine witnesses to testify before it. So far two witnesses have testified before the court under such a subpoena. They are Witness 604 and Witness 495 and like Witness 516 they gave their testimony via video link from an undisclosed location in Nairobi. They were also declared hostile witnesses.

The chamber issued the subpoenas after receiving submissions from all parties when the prosecution applied the subpoenas. The prosecution did this when the nine witnesses stopped cooperating with them last year and mid this year.

By declaring Witness 516 a hostile prosecution witness, Trial Chamber V (a) effectively allowed Steynberg to cross-examine his own witness. The normal practice is that when the prosecution calls a witness in support of their case, they are required to ask the witness open-ended or neutral questions so that the witness can present their evidence in their own words.

However, if a prosecution witness is declared hostile this allows the prosecution to challenge their testimony by putting propositions to them or asking them leading questions. In essence, the prosecution would be questioning them as they would a defense witness who is expected to contradict the prosecution’s evidence. It is not only a prosecution witness who can be declared to be hostile. A defense witness can also be declared to be hostile for similar reasons and with the same effect that the defense will challenge their testimony in court.

Once Witness 516 was declared hostile much of his testimony took place in private session. During the parts of the hearing that were in open court, Steynberg challenged the witness about some of his earlier testimony. He began by questioning Witness 516 about his testimony that he did not know about any animosity between the Kikuyu and the Kalenjin in the Turbo area.

“I put it to you sir that you knew very well that the reason why the Kikuyu were fleeing towards the IDP (internally displaced persons) camps was because Kalenjin supporters were launching attacks on them, burning their houses, looting their houses. Isn’t that so?” asked Steynberg.

“It is not so,” replied Witness 516.

Steynberg then asked the witness about his meeting with two men who are only identified in open court by their pseudonyms, persons number one and three. Steynberg asked him about the timeline between that meeting, which the witness said occurred in October 2012, and his meeting with prosecution investigators.

In response to Steynberg’s questions Witness 516 said that his interview with prosecution investigators occurred three and a half weeks after his meeting with the two men. The witness has previously told the court he does not remember when in October 2012 he met the two men.

“I am going to put it to you Mr Witness that three and a half weeks prior to you meeting with the investigator at location four on the 20th of November, it would have been impossible for you to be meeting with (person) number three in Eldoret,” said Steynberg. Judge Eboe-Osuji said the question was an argument. Steynberg then asked for the court to go into private session so he could put the question more directly to the witness.

Steynberg concluded his cross-examination of Witness 516 in the afternoon. He submitted the witness’ statement and three annexes to that statement as exhibits “for impeachment purposes” and not for their truth. The chamber accepted his application and the items were logged in as prosecution exhibits. Ruto’s lawyer, David Hooper, began cross-examining the witness in the late afternoon in private session.

Witness 516 will continue testifying on Friday.

For useful background on this stage of the trial, see our three-part series from  May this year, “Who are the Eight Prosecution Witnesses Unwilling to Testify in the Trial of Ruto and Sang.”