Who is a witness Capable of giving Evidence.
All persons are competent to give evidence at any stage of the trial unless:
- they don't understand the questions put to them and;
- they cannot give answers to those questions which can be understood
The above exceptions apply to all witnesses but most commonly affect children, persons of unsound mind and, the defendant himself. Children and individuals of unsound mind are subject to be tested to ascertain their competence if their testimony is necessary. It is important to note that, as a rule, the accused will always be deemed incompetent as a witness for the prosecution.
A person can be compelled (forced) to give attend court and give evidence if they have been deemed competent to do so. The exceptions to this rule are the accused himself, the accuser's spouse and other individuals who are not deemed competent to give evidence.
The accused's spouse can only be compelled to give evidence against him on the Prosecution's behalf in limited circumstances, as follows:
- If the offence the accused is being tried for involves an assault or threat of injury to the spouse .
- In the offence involves an assault on or threat of injury to an individual under the age of 16
- If the offence is a sexual offence committed in relation to an individual under the age of 16;
- If the offence is an offence that consists of attempting or conspiring to commit or of assisting, instructing, appropriating or encouraging the commission of any of the aforementioned offences .
If the accused is not being charged in relation to any of the above circumstances then the accused's spouse is only compellable to give evidence on behalf of the accused and not against him. It is to be noted that cohabitees and former spouses are compellable if they are competent as the rules applicable to spouses to do not apply.
In the circumstances where either party to the proceedings believes that a witness may not attend court voluntarily, they can apply for a witness summons to be issued (an order issued to a person outlining the specific date for their appearance in court). A witness summons can take 2 forms namely, a witness summons requiring a person to give evidence and a witness summons requiring a person to produce documents that are needed as evidence. If a witness fails to attend court or give evidence or produce the required documents, they can be punished for contempt of court.
In the event that a witness feels too frightened or distressed to give evidence, special measures may be taken. An order called a special measures direction may be made by the court following either an application by either party to the proceedings or by the judge's own volition. In order for a special measure direction to be made, the court must be satisfied that the quality of the witness' evidence may be lessened by their fear and distress.
There are a number of factors that a court must take into account when deciding whether to make a special measures direction relating to fear, these are:
- the witness's age;
- what type of offence the accused is being tried for and the alleged circumstances surrounding the offence;
- the ethnicity of the witness and their social and cultural background;
- the witness' religious and political beliefs and opinions and;
- the accused's behaviour towards the witness as well as that of his family or anyone he associates with
A witness' details will never be given to the defendant or his legal representative and details such as addresses will not be mentioned out loud in court. If a witness feels threatened at any point they should tell their witness care officer or, if they feel seriously threatened, or While in court, witnesses are given separate waiting areas where possible. In special cases a witness may be relocated to a house in another area to ensure their safety; this is arranged by the police.
When a criminal is released from prison, in very serious cases, a witness will continue to be protected. They will be told when the offender is about to be set free and can liaise with a specially allocated victim liaison officer who, in certain circumstances, will arrange for an injunction (legal order forbidding a person to come within a certain distance of another named individual) to be made in order to ensure the offender stays away.
Dear friends, what really made Kenya a Situation in the ICC process!
On Sunday, April 20, 2014 11:48 PM, Kuria-Mwangi <kjmwangi@gmail.com> wrote:
Khaguli
Close that trap mara moja. Do you need Hague contacts so that you can present your evidence? That is Migosi is politely telling you. I will organize for you to get into witness protection program where you will be paid but you must shut the hell up and stop hii ghasia. On Sun, Apr 20, 2014 at 12:49 PM, khaguli maurice <mkhaguli@yahoo.com> wrote:
--Migosi,Usifanye mzee Kuria wa Mwangi wa wairimu aanze kunyambanyamba hapa kama Hussein abbas akiwa kwa sala la ijumaa pale MombasaWe stand to emphasize the truth, truth is one!On Sunday, April 20, 2014 3:34 PM, Migosi O'Migosi <bmigosi@aol.com> wrote:
--Gd.morning Khaguli,I wish I had a clue, by now my application to be a volunteer witness would be at Bensauda's desk and save her the agony of the of one less the forced list.Migosi O'Migosi"If facts don't fit the theory,Change the facts"Albert Einstein
-------- Original message --------
From: khaguli maurice
Date:04/20/2014 9:17 AM (GMT-05:00)
To: progressive-kenyans@googlegroups.com,uchunguzi online
Subject: Re: [PK] Oh jesus! Akikuyu again? How Wilfred Nderitu SEALED William Ruto's FATE at the ICC--Migosi,Who killed Kenyans at Naivasha and Nakuru? Hope Ruto is set free, otherwise mambo bado!We stand to emphasize the truth, truth is one!On Sunday, April 20, 2014 2:16 PM, Migosi O'Migosi <bmigosi@aol.com> wrote:
--Askofu,I recommend a visit to prophet Owuor, he casts out demons,sorry mademoni.Migosi O'Migosi"If facts don't fit the theory,Change the facts"Albert Einstein
-------- Original message --------
From: Kuria-Mwangi
Date:04/20/2014 7:31 AM (GMT-05:00)
To: progressive-kenyans
Subject: RE: [PK] Oh jesus! Akikuyu again? How Wilfred Nderitu SEALED William Ruto's FATE at the ICCTrue. He seems to have demons in his, head commanding him to see and shout kikuyu in every nightmare he gets.On Apr 20, 2014 6:46 AM, "Migosi O'Migosi" <bmigosi@aol.com> wrote:----Evans,If the cases got dismissed today, Khaguli will read some kikuyu interference in the process.Only and I say only conviction will clear his mindset and the the cascade effects will be felt a cross canada.Migosi O'Migosi"If facts don't fit the theory,Change the facts"Albert Einstein
-------- Original message --------
From: Evans MACHERA
Date:04/20/2014 4:59 AM (GMT-05:00)
To: BUNGE MWANACHI ,mwanyagetinge@hayoogroups.com,Wanabidii ,Wanakenya ,Wananchi ,Progressive-kenyans ,Young Proffessionals ,YOUNG PROFESSIONALS ,Kiswahili
Subject: [PK] Oh jesus! Akikuyu again? How Wilfred Nderitu SEALED William Ruto's FATE at the ICC--Bw.Khaguli,The International Crimes Act 2008 (Laws of Kenya) was made to commit the Government of Kenya . Ukikuyu umetokea wapi hapa!
Read on;-The International Crimes Act, 2008 : an act of Parliament to make provision for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes, and to enable Kenya to co-operate with the International Criminal Court established by the Rome Statute in the performance of its functions
On Saturday, April 19, 2014 11:23 PM, khaguli maurice <mkhaguli@yahoo.com> wrote:
Submissions by the lawyer representing victims of the post-election violence sealed the fate of Deputy President William Ruto as it prompted International Criminal Court (ICC) judges to order the Government to force eight witnesses to testify against him.The judges were quick to point out that arguments by High Court advocate Wilfred Nderitu captured the correct interpretation of Kenya's laws, as opposed to those by Attorney General Githu Muigai. The ruling could be a pointer to a looming showdown between the Government and the ICC, which appears to have taken a hard-line position against Kenya especially on President Uhuru Kenyatta's financial records.In their 78-page decision issued on Thursday, the judges gave Nderitu the thumbs up for correctly interpreting the Kenyan law, which they said Attorney General Githu Muigai had deliberately avoided. "Mr Nderitu is the counsel for victims in this case. He is a member of the Bar of Kenya," the three-judge bench said. "The Chamber is persuaded that Mr Nderitu's position summarises the correct answer to the question addressed in this part of the decision."The judges said that in the course of oral submissions, Prof Muigai and Ruto's defence counsel Karim Khan had evaded telling the chamber whether there was any Kenyan law that prohibits Kenya from complying with the prosecution request. "The Attorney-General and the Defence avoided giving an answer to that question," the judges observed.
They added: "Considering the vigour with which they opposed this application, the Chamber is confident that the Defence and the Attorney-General would have brought any such law to the attention of the Chamber," When he appeared at The Hague on February 15, The Government chief legal advisor told the judges not to contemplate issuing such orders on Kenya insisting that it offends the International Criminal Act.The judges said that in the course of oral submissions, Prof Muigai and Ruto's defence counsel Karim Khan had evaded telling the chamber whether there was any Kenyan law that prohibits Kenya from complying with the prosecution request. "The Attorney-General and the Defence avoided giving an answer to that question," the judges observed.They added: "Considering the vigour with which they opposed this application, the Chamber is confident that the Defence and the Attorney-General would have brought any such law to the attention of the Chamber," When he appeared at The Hague on February 15, The Government chief legal advisor told the judges not to contemplate issuing such orders on Kenya insisting that it offends the International Criminal Act.By Felix Olick for the STANDARDWe stand to emphasize the truth, truth is one!__._,_.___
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--
\Veritas liberabit vos
The truth Shall set you free
http://www.kuria-mwangi.blogspot.comhttp://www.facebook.com/kjmwangi
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