This is the third part of a three-part article on the witnesses the International Criminal Court (ICC) prosecution is seeking to be compelled to testify in the trial of Kenyan Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang. This final part looks at if the witnesses were to testify whether such testimony would advance the prosecution’s case.

Before the eight witnesses withdrew, Karim Khan, Ruto’s lead defense lawyer, asked the court to order three of them to testify at the start of the trial. Khan’s application was supported by Sang’s lawyer, Joseph Kipchumba Kigen-Katwa. Khan wanted Witness 15, Witness 16, and Witness 336 to be part of a group of eight witnesses he considered important to start the trial with, arguing in a July 19, 2013 submission that the integrity of the proceedings would be protected if this order of witnesses was followed.

“To use a Kenyan colloquialism, based on witness statements and documents, the Defence has substantial grounds to believe that these eight key prosecution witnesses have been part of a deliberate and concerted scheme to “cook” evidence against Mr. Ruto,” Khan wrote.

Now that the witnesses no longer wish to testify why does the prosecution bother with them?

ICC Prosecutor Fatou Bensouda argued in her December 5, 2013 application that justice would be served by the witnesses being compelled to testify.

“The Chamber should hear the evidence of these witnesses in order to determine the truth, not simply about the charged crimes, but also concerning the allegations by both Defence teams of a concerted and elaborate conspiracy at play in this case to fabricate evidence and implicate the Accused,” Bensouda wrote.

“Certain of these witnesses have subsequently recanted the evidence given to the Prosecution and accused the Prosecution of irregularities in its interactions with them. It is thus particularly important to secure the attendance of these witnesses to explore the veracity of their conflicting statements,” Bensouda elaborated.

Kigen-Katwa disagreed with the prosecutor. He was surprised that the prosecution had chosen to take different approaches towards recanting or withdrawing witnesses in the two Kenya cases before the ICC. He observed that the prosecution withdrew witnesses from the case against President Uhuru Muigai Kenyatta who had either recanted or withdrawn their testimony even though such a move undermined the prosecution’s own case.

“This approach, the Defence submits, is the appropriate one, and seems to be an admission on the part of the Prosecution that testimony which has been recanted, has limited probative value,” Kigen-Katwa wrote in his January 10 submission.

Kigen-Katwa further argued that any testimony the eight witnesses may give would not be of value to the court.

“Evidence which has been disowned or changed multiple times and/or which is not procured voluntarily is hardly believable beyond reasonable doubt, and therefore does not materially assist the Prosecution’s case, nor does it resolve any specific issues in the trial,” Kigen-Katwa wrote.

Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr stated in their majority decision ordering the witnesses to appear before the ICC that the defense was only speculating when stating the witnesses would be hostile to the prosecution.

“Regarding the potential hostility of the Eight Witnesses, until any witness has been given an opportunity to take the stand, take the oath and take questions in examination-in-chief, it would be speculative to declare the witness as hostile,” said the two judges.

“Even then, there is no known wisdom that hostile witnesses are incapable of testifying to the truth under oath. The usual danger is that the calling party runs the risk of the witness in question testifying in a manner that is more favourable to the opposing party, such that may not aid the case of the calling side. But that possibility is not without value in the search for the truth, especially in light of the provisions of article 54,” the judges wrote.

Article 54 is the provision in the Rome Statute that details the prosecution’s authority and powers to investigate crimes.

Judge Olga Herrera Carbuccia did not address this issue in her dissenting opinion even though she did say she agreed with Judges Eboe-Osuji and Fremr that the court had the power to summon unwilling witnesses.

The trial of Ruto and Sang is scheduled to resume on Wednesday, May 14.