Rocky start to Kenyan trial

The ICC trial against William Ruto, deputy president of Kenya, and journalist Joshua Sang has got off to a rocky start.

No sooner had testimony of the first witness begun then her name was allegedly leaked on the Internet, most likely via Twitter (established Kenyan media outlets maintain that they were not responsible, though some of them have been repeating the leakage).

Presiding Judge Chile Eboe-Osuji chose his words carefully when he said that it appeared to be leaked, realising to state things with greater certitude would confirm that the leaked name was actually correct. Lawyers in the trial seemed not to be so circumspect.

The vitriolic animosity displayed by certain Tweeters against this witness was startling, although perhaps shows how polarised the debate over the trials has become within Kenya.

The (alleged) revelation of this witness is extremely worrying, especially as prosecution witnesses have been withdrawing from the case at an alarming rate (two more withdrew this week, arguing in their affidavit that things were now at peace in Kenya and they didn’t want to change this).

The judge responded to the matter by throwing all of the testimony of the first witness into closed session. This seems to have benefitted the prosecution, since it is in the interest of the accused for the allegations to be heard in public.

Lawyers for Ruto and Sang intensely fought for the witness’s testimony to be heard in open session, with Karim Khan, lawyer for Ruto, even arguing that it was placing a huge strain on Ruto’s eighty year old mother since she was not able to follow the trial back in Kenya.

But the judge made the right decision. How can these allegations be heard in public when the identity of the witness is known? Allegedly.

One can only hope that the identity of future witnesses will be better concealed.

The judge wasted no time in sending out a message to the Kenyan media and anyone who might be inclined to reveal the identity of witnesses that they could face prosecution for such contempt of court.

It is not entirely clear what exactly what the ICC can do about this, but the strong implication from the Rome Statute is that responsibility should rest with member states.

Article 70 states: “Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals.”

Whether Kenya, which is now considering total withdrawal from the ICC, will actually be prepared to take any action over this matter remains an open question.

The danger is that, without a clear understanding of the damage that such leakages do to due process and the very real threat of sanctions for anyone committing such contempt of court, I fear that this may not be a one-off.

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