Earlier this year, the Ruto defence requested the full screening notes used in interviewing Prosecution witnesses. A number of these witnesses will not be called at trial. The Prosecutor undertook to provide the notes once she had carried out a risk assessment and contacted the persons to whom the notes related. Having done this, she felt that the concerns of the witnesses about the risks they may face if their identities are disclosed were too great in view of the low probative value of the screening notes. Some of the witnesses worried that they would be classed as ‘betrayers’ of their community and they or their families may face retribution for cooperation with the court. Therefore, she sought the Court’s permission to keep the identities of the witnesses in the screening notes from the defence.
The Ruto Defence opposed this application, arguing that the Prosecutor applied the incorrect test in deciding whether to disclose witness identities. They point to alleged inaccuracies of fact and law in the Prosecution application. The Defence also complained that there are deficiencies in the OTP that are leading to a ‘haphazard’ approach to disclosure of evidence. The defence team feels that excerpts of the screening notes are insufficient; they need the full notes with the identities of the witnesses.