• The prosecution had requested the Chamber to grant an extension from November 15 to December 15.
• This was to allow for the disclosure of the written statement, associated evidence and identity of Witness P-0729 to the Defence.
The ICC Deputy Prosecutor James Stewart has suffered a blow after the court declined a request to add his office more time to convince a key witness to testify against Paul Gicheru.
ICC Judge Miatta Maria in a ruling dated November 12 rejected the request by the prosecutor noting that the prosecution office was "speculating" that granting it more time was a solution to "the problem it now faces."
The court had set November 15 as the deadline for the disclosure of all evidence and material on which the office of prosecutor intends to rely during the trial of Gicheru.
Gicheru surrendered before the ICC last year following an arrest warrant issued by the Hague based court over allegations of witness interference in Deputy President William Ruto's case.
Among the items the prosecution was supposed to disclose was the list of items it plans to submit as evidence during the trial and the list of prosecution witnesses.
This was to clear the way for the start of the trial against lawyer Gicheru.
However, on November 10, the prosecution filed a request seeking an extension of time by one month, to December 15 to disclose the identity of a key witness it wanted to rely on.
The prosecution explained to the court that it had interviewed the witness but had developed cold feet.
"After initially agreeing to appear as a prosecution witness, the person informed Prosecution that the witness no longer wishes to cooperate with the prosecution," reads in part of the court documents.
The prosecution informed the court that it wanted to talk to the witness again in order to determine if the person will cooperate.
It is on this basis that the prosecution asked for more time beyond the November 15 deadline that had been set by the court.
In its ruling, the court noted that the prosecution failed to explain why it contacted the said witness "so late in the proceedings or why it was not possible to do so earlier."
The court also noted that even if the prosecution managed to convince the witness to cooperate, there was no guarantee that the necessary prosecution measures can be implemented by December 15.
"In other words, even if the Chamber were to grant the extension, it would still be entirely speculative whether this would allow the prosecution to call the witness," observed the court.
"Taking into account the Prosecution’s own contribution to the problem it now faces as well as the entirely speculative nature of the proposed potential solution, the Chamber is of the view that the Prosecution has failed to show good cause to extend the deadlines," she said.
"Accordingly, the Chamber rejects the request. Irrespective of the denial to grant the Request, the Chamber notes that the obligations arising from Article 68(1) of the Statute continue to exist."
The purpose of this meeting is that the Witness is currently unwilling to continue cooperating with the Prosecution and the Prosecution wishes to make a final attempt to change the Witness’s mind.
But the judge says that if this succeeds, the Prosecution does not seem to be in a position to guarantee that the necessary protective measures can be implemented by 15 December 2021.
"In which case the Prosecution concedes that it would not be able to rely on the Witness in this case either. In other words, even if the Chamber were to grant the extension, it would still be entirely speculative whether this would allow the Prosecution to call the Witness," she said.
She says that the Prosecution failed to submit an explanation as to why it contacted the Witness so late in the proceedings or why it was not possible to do so earlier.
"Nor does the Prosecution provide any other ground that could justify an extension despite the fact that the current obstacles it faces are almost entirely due to the fact that it initiated contact with the Witness at such a late stage," she added.
The ICC Trial Chamber three last week admitted William Ruto's ICC records in the Paul Gicheru case that is set to begin on February 15, 2022.
The evidence will be transferred to Gicheru’s case with confidentiality and redaction of some details to conceal the identities of witnesses.
Edited by D Tarus