International Justice Monitor

A project of the Open Society Justice Initiative

ICC Prosecutor Asks Court to Admit as Evidence Statements of Witnesses Who Recanted

Prosecutor Fatou Bensouda has applied to the International Criminal Court (ICC) for the statements of witnesses who have since recanted them or refused to testify to be admitted as evidence against Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

In the April 29 application, Bensouda asked Trial Chamber V(a) to admit the previously recorded statements of as many as 16 witnesses into the court’s record “for the truth of their contents.” She has asked the chamber to also consider admitting into evidence the transcripts of the witnesses’ recorded interviews and other related material. The prosecutor has argued that the reason these witnesses recanted their statements in court or refused to testify was because of “a scheme” to intimidate and bribe them.

“Given the evidence implicating persons acting for the benefit of the Accused in the interference of the Corrupted Witnesses, the interests of justice would be best served by the introduction of their Prior Recorded Testimony into the Court record so as to prevent the Accused from benefiting from crimes against the administration of justice committed on their behalf,” Bensouda stated in the application.

“The very mission of the Court to end impunity would be placed in jeopardy if an accused could evade justice through improper interference with Prosecution witnesses. Denying the Prosecution the remedy it seeks would also send out the wrong message to likeminded persons and encourage them to adopt the same strategy,” Bensouda continued.

Bensouda’s application was originally filed on April 29 as confidential and available only to the Office of the Prosecutor (OTP) and the court’s Victims and Witnesses Unit (VWU). Its 12 annexes are also filed as confidential. Bensouda said in the application that the material in the 12 annexes have been disclosed to the defense teams of Ruto and Sang. A publicly redacted version of the application dated May 21 was posted on the court’s website last week. The public version excludes the annexes.

The prosecutor’s application does not come as a surprise. Since September last year, senior trial lawyer Anton Steynberg had indicated that the prosecution may apply to the court to have statements some witnesses had recorded with the OTP to be admitted as evidence against Ruto and Sang. This followed the chamber declaring several witnesses hostile to the prosecution because during their testimony in court they had departed systematically from statements they had previously recorded with the OTP. Out of the eight witnesses who testified between September last year and January, the court declared five of them hostile to the prosecution.

The five are Witness 604, Witness 495, Witness 516, Witness 637, and Witness 743. Before they were declared hostile, Trial Chamber V(a) ordered they be compelled to testify after the prosecution applied for such orders because the witnesses had either refused to cooperate with the prosecution or recanted their earlier statements. The chamber also ordered Witness 727 to testify before it in March but the witness never showed up. His lawyer said that he was in hiding, fearing for his life. These six witnesses are among the 16 witnesses Bensouda has referred to in her application. To date, 29 witnesses have testified, four of them expert witnesses, in the trial of Ruto and Sang, which began in September 2013.

This application may signal that the prosecution is preparing to close its case because since March only a brief one and a half hour trial hearing has been held. This was on April 13, and it was held entirely in private session. It is not publicly known what was discussed at that last hearing, and no trial hearing or status conference has been scheduled since.

Bensouda has argued that the legal basis for the application is Rule 68 of the ICC’s Rules of Procedure and Evidence. She has asked the chamber to admit the statements, interview transcripts, and related material under subsection 2(c) and (d) of Rule 68. The first provision sets out how a trial chamber may introduce a witness’s previously recorded testimony if the witness is reasonably unable to testify before the court or if that witness is dead or presumed dead. The second provision sets out how a trial chamber may introduce into evidence a witness’s previously recorded testimony if that witness has been interfered with.

The prosecutor noted in her application that during oral submissions on the issue, the defense of Ruto and Sang argued the prosecution could not use Rule 68 because it was amended to include its current provisions after the trial of Ruto and Sang had begun.

The ICC’s membership, the Assembly of State Parties, amended Rule 68 in November 2013. Before it was amended, Rule 68 laid out in broad terms the procedure for admitting previously recorded witness statements and related documents. It did not have provisions covering scenarios such as the death of a witness or the inability of a witness to testify.

Bensouda acknowledged in her application that Rule 68 was amended after the trial of Ruto and Sang began but argued that this amendment was made long before the prosecution applied for the witnesses’ previously recorded testimony be admitted into evidence.

The prosecutor has argued that if Trial Chamber V(a) is not convinced that Rule 68 is a good legal basis for accepting the application, the chamber can accept the application on the basis of Article 69 of the Rome Statute. This article covers how a trial chamber shall receive evidence. The prosecutor has argued that subsections 2 and 4 of Article 69 give the chamber the grounds to accept the application.

In the application, Bensouda has also offered she has called “ample evidence” of “a scheme” by individuals not publicly named to intimidate or bribe the witnesses.

“The supporting evidence is not placed before the Chamber for any purpose which goes beyond a procedural disposition of the present request; specifically, the Prosecution does not intend such supporting evidence to be admitted as evidence against the Accused on the merits of the main case,” Bensouda has stated.

“However, the supporting evidence is probative and relevant for the Chamber’s determination of this application, since rule 68 requires the Chamber to be “satisfied” of the existence of certain preconditions before admitting the Prior Recorded Testimony and this evidence will provide the necessary basis for such conclusion. It should thus be accorded full consideration,” Bensouda continued.

In 15 pages of the 46-page application, Bensouda has detailed some of the allegations of witness intimidation and bribery. All these pages are redacted in the public version of the application. In line with the chamber’s direction, Bensouda has also included in an annex to the application a solemn declaration by the prosecution’s lead investigator detailing how the material being placed before the chamber was collected. Also annexed to the application are other materials that are not already part of the court’s record but relate to the witness bribery and intimidation allegations.

Some of these allegations may have also been heard during the testimony of three witnesses that was held in private session. These are Witness 604, Witness 495, and Witness 516. Each of them was declared hostile to the prosecution. Each of them was also granted partial immunity from prosecution from any offences that involved interfering with, intimidating or bribing witnesses – what in the court’s shorthand are called Article 70 offences. They were not granted immunity from perjury, which is also an offence under Article 70 of the Rome Statute. In exchange, the three witnesses were expected to tell the chamber all they knew about such attempts and their involvement. Trial Chamber V(a) approved this deal and the witnesses’ testimony on the matter was heard entirely in private session.

In the April 29 application, Bensouda said these witnesses “largely denied during their testimony that their withdrawal and subsequent recantation were the result of interference.” To rebut these claims, Bensouda has included material from other prosecution witnesses and potential witnesses. She said that this material shows that “the scheme members” used “essentially” the same modus operandi when intimidating or bribing witnesses who eventually testified or not.

From the prosecution’s application it is clear that Trial Chamber V(a) listened to oral arguments on the issue of admitting previous statements of prosecution witnesses into evidence. Now that the prosecution has filed an application asking for those statements to become part of the evidence against Ruto and Sang, this means that their defense teams will be expected to files responses. The lawyer representing victims will also be expected to file responses. The deadlines are not publicly known because those deliberations took place during a session closed to the public.

Last Friday, the chamber ruled to not allow Kenya’s Attorney General Githu Muigai to file observations on the issue as a friend of the court, or amicus curiae. Muigai had applied on May 27 to be allowed to submit observations as Kenya was party to the negotiations to amend Rule 68 of the court’s Rules of Procedure and Evidence.

Irrespective what decision the chamber makes on this application, the prosecution is nearing the end of its case. Once the prosecution closes its case, the next step will be for the court to listen to any evidence the lawyer for victims may present. This is according to the chamber’s fifth decision on how the trial proceedings will be conducted that was issued on June 3, 2014.

The evidence the lawyer for victims may present to the court will mainly be the testimony of some of the victims affected by the crimes described in the document containing the charges. This stage of the proceedings will only happen if the lawyer for victims has made an application as directed by the chamber in its August 9, 2013 decision. It is not publicly known whether such an application has been made. If the chamber schedules a time for victims to testify, then Ruto will be expected to be in court throughout that time. This is one of the conditions the chamber set when it allowed him to be absent from most of the trial proceedings.

40 Comments
  1. if prosecution cnt proof te case beyond reasonable doubt,… thn wht r te judges doing…. wasting tme n resources…. we cnt assume things whn innocent r charge… from te look of previous testimonies ….n for te sake of OTP… I wud advse prosecutor to drop thse charges I can tht wrong pple r tried

  2. Please which school of allow some one to be convicted proper investigation.This a failure on the prosecution side to carry out proper justice and instead rely on hearsay and gossips. Bensouda don’t crucify someone any how.OUR GOD IS WATCHING AND don’t take this curses to yr generation.Live a honest live

    • Which God are you @kiptoo referring to? A God who does not protect the victims? In your view the prosecution is wasting time and resources…. you are giving a ruling of “Not Guilty” in favour of Ruto et al. What a fatal omission in law! You qualify as a juror in a village court. Need I say more?

      • Kenya is a state that is currently embracing reconciliation between the conflicting parties. the accused individuals chose the ICC since they knew they were innocent. Bensouda’s request to atricle 68 is a sacrificial stunt to ensure that the two accused individuals are crucified for the sins of they did not commit. Remmember a witness can be hostile for many reasons apart from bribe, Africa looks upto the ICC to reach to a verdict that will be just and fair. Kenyans are watching. God is watching.

  3. if the prosecutor has not been able to establish a case against the DP she can kindly withdraw the matter forthrightly instead of wasting time and resources. from the first there was no case all the witnesses were bribed and coached so that they can implicate the innocent. the prosecutor should have done proper investigations from the onset instead of using cater press and NGO’s.

  4. This icc case should be terminated.Excuses and moving goalpost should be avoided and look for justice to take its cause

  5. Madam Fatou., pse leave us alone. Remember what Ocampo said about evidence frm witnesses. Set our two brothers free and God will rewrd u reachly. Dont force cooked evidence to harmer them. They areinnocent , from the look of things.

  6. It would be in bad faith for the Judges to rule that the OTP can fraudulently procure witnesses and bring such evidence to court on the pretext by the OTP that the witnesses were bribed or intimidated…that would be rewarding corruption, collusion and defeat the course of justice too…

  7. why is bensuoda trying to wasting her time ,if she cann’t belived on 29 witness , why look for a scape

  8. eeh…. prove da case beyond reasonable doubt.

  9. The most significant aspect of the prosecutor’s application to rely on absentee witness statements invokes an exception to the exclusion of hearsay evidence. While the word “hearsay” appears nowhere in the Rome Statute, nonetheless, Article 69(7) creates an exclusionary rule for improperly obtained evidence (it allows videolink etc). More specifically, the ASP November 2013 amendment to Rule 68 allowing statements of dead or disappeared witnesses was intended to operate prospectively. Hence my interpretation of that condition imposed by the ASP suggests that it should not apply in the Kenya cases.

    The upshot is that assuming the Ruto Trial Chamber admits the truant statements (say in October 2015) then Ruto and Sang shall appeal. Argument after appeal may be rendered in March 2016. Thereafter assuming the Appeal Chamber also admits the truant statements, then their formal admission may occur in May 2016, followed by arguments on “no case to answer” in June. The verdict on the no case submissions is likely to be delivered in late 2016.

    Sang’s predicament is more certain. There is precedent from the Arusha Tribunal media case that journalists who incite genocide have a case to answer. Hence, Sang may have to call forensic linguists to interpret the tape recordings of his radio broadcasts which allegedly triggered ethnic attacks. If the Chamber believes that he conspired with Ruto, then under the law of conspiracy, Sang’s and Ruto’s actions and intentions become indistinguishable.

    The defence hearing is likely to last throughout 2017 casting a strong shadow over Kenya’s 2017 general elections. Ironically, ICC is likely to be depicted as a neoimperialist tool, thus uniting national sentiments to coalesce in support of Uhuruto once again. It is only upon exhaustion of appeals that Ruto may become legally ineligible to hold public office under Kenya’s constitution. However Uhuru is unlikely to want the baggage of a fugitive – like Sudan’s Omar Al Bashir was who attracted economic sanctions.

    In short, DP Ruto is not quite out of the woods just yet. The Appeals Chamber may yet refer Kenya to the ASP for non-co-operation in Kenyatta’s case before the end of this year. Such referral can itself impact by triggering a resolution deploring Kenya’s conduct and in turn diplomatic and economic sanctions against Kenya by third party states. The added weight of Kenya’s imminent referral can indirectly embolden the Ruto Trial Chamber to claim moral high ground in support of victim’s justice thus diminishing the suspects’ rights against retroactive application of the exception to hearsay.

    • A sober analysis…. you are a lone voice of reason among the readers/commentators on here. Most readers appear to conclude the case before its determination through due process. Kenya has many “bush lawyers” as the comments here testify.

  10. U can see they are INNOCENT

  11. Bensouda can’t believe watching bundles of dollars to lying witnesses go.This is no longer in persuit of justice but an assualt to a sovereign state and its legitimate leadership.What an abracadabra at the whorld’s highest court!Bensouda is destined to fail no matter the kicks of a dying horse.

    • @Justus rotich place a bet on your proposition and I’ll wager a double. Watch this space. God never forsakes his people (the victims) by rewarding the perpetrators. Remember this, always.

      • @eric karungu, i concur with you but that will not happen if you choose the wrong people using evidence full of lies. A lie can not endure

  12. How can she wanted to bring the evidence which are not tested in court?Shame on you

  13. madam fatou,if u lack evidence set our brothers free.

  14. Does it mean the prosecution team haven’t get any sufficient evidences in the 27000 pages document?.
    RELYING on hostile witnesses previous unconfirmed statements is mostly likely to down grade icc standard. The best option for prosecution is to drop the case against ruto/sang case and start a fresh investigations.

  15. Can one use such evidence to convict one! then they should have used it before what is the difference between now and then?The implication is no evidence from all the previous processes to nail the duo! Now they resort to this kind of thing admit the recanted statements as evidence the statements that were to be tasted in the case to prove beyond reasonable doubt that they have committed crimes against humanity!This hurts the peaceful coexistence of communities in Kenya if at all this is the direction they hope to serve justice!It wont heal this country ever!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    • Who will speak for the hiding and dead witnesses. You got a short memory eeh! Do you remember the story of a man found dead in Kenya over the weekend (on 28 December, 2014) was a key witness for Deputy President William Ruto at his trial in The Hague?

      Meshack Yebei’s decomposed body was discovered in western Kenya after he was reportedly abducted on 28 December. The International Criminal Court (ICC) had earlier said the witness was offered protection in a safe location but returned home (BBC Africa News 6 January 2015).

      Are dead witnesses in your view, something to be just wished away and the case concluded in a hurry to your convenience? Is justice for the common good or selective in favour of Africa’s warlords?

      • 20 witnesses have admitted under oath that they lied eddie what do you mean? do you need any body to speak for them again.shove it through your own throat.it aint making sense to defend just blowing wind!let it blow where it goeth.

  16. madam, your argument is invalid. may you let my Deputy President enjoy freeness if there is no witness…… please madam do not bring to foots the respect of the court by having such UN listenable evidences. why use the already used words that you had failed to give any judgement towards it????? you might be a bribing agent madam..these men have proofed their innocence without fail.

    • A basic English lesson for @Sixtus Tokusi. “Freeness” do you mean freedom? UN listenable evidences? No guess what you mean. However evidence has no plural. Madam Prosecutor Fatou Bensouda is not judging anything. Neither is she a bribing agent. Rather, she is prosecuting the case. “….these men have proofed their innocence….” What a load of incomprehensible gibberish! Proofed? Perhaps you mean proved. Even then, it is not up to you, or the accused themselves to declare a “not guilty” verdict upon themselves. You could perhaps try to understand what is meant by “due process”. However, I highly doubt you will if English eludes you, in the first place. Use Kiswahili or you mother tongue if you wish to communicate in a better manner.

  17. You’ve failed and also ashamed everyone in the world,you were informed before that no proper investigations were done but were political propaganda.kenyans knew who the culprits were,the main suspects were the main political party leaders.prosecutor’s action has failed icc, kenyans & all nations.

  18. Our greatest and only judge is Yahweh Elohim. Yahweh my father, judge justly for all who are involved. You know the TRUTH and you COUNSEL is FINAL. Do your WILL for all Kenyans as it is In heaven.AMEN!!!!

    • @Jane, with due respect, Yahweh Elohim (God Almighty) will never forsake the victims for the sake of the perpetrators that you support. Empathize with those who have suffered the loss of loved ones, property and distorted livelihoods. Don’t they deserve justice too? In your view, the mayhem never happened? If it did, let the truth be told, from the known (statements) to the unknown (the evidence that remains with the dead, intimidated or bribed witnesses). Blind demi-god discipleship is evil, very evil. It is a sin (and perjury in law) to bear false witness.

      • Eddie YHWH is just and righteous there is no trace of the two in your multitute of words!just bubble.

      • who is this short man in knowwlege calling himself Eddie karungu or kirungu? answering rudely and arkwardly every article contributed ? who assigned him that job ?. he is a biased man. amr know all person. mbele mbele. Never poke our hearts pls. remember our sons are still in icc. prior to ……… acquittal you were not contributing. why now?

  19. Eddie, I don’t wish t prejudge you; but I do not see you making nay reference to the people who recanted their evidence and gave their reasons i.e. ” promises of relocation and a good life abroad that never materialized”.

  20. Eddie do mean victims will get their rights through crucifiction of two innocent Kenyans they are also victims of shoddy investigations from sworn political foes.

  21. if the witnesses recanted the statements b4 the judges and gave the truth then who are you to force for their admission. secondly, u don’t want to tell the court’s who bribed them and at which place. pliz note that you are damaging icc reputation. these cases must be dropped immediately.

  22. Key point to consider,

    1) it does excellent not matter anymore if the witness statements are allowed to stand or not, based on the simple fact that it will be tested… therefore the real issue is whether to end the case now or proceed with the defense.

    2) should the witness evidence be allowed, then the OTP will expose itself to questioning for its decision to pick the accused in the fast place.

    3) if the witness evidence is blocked, then the OTP can say they had evidence that was not presented before court, hence, they cannot be blamed for a judgment by the court.

    4) the OTP has not presented a case before the court… The quote above,”the courts mandate. ?..to end impunity…”, proves that the trial was a farce, a show, a Hollywood-production-ess…meant to startle and not seek the truth! It is not the courts mandate to end impunity, never ever was… no court can do such. The court is there to adjudicate and provide a judgement…

    5) all actions from here on serve to save face and nothing else. The court should however be alive to the fact that the defense is being asked whether or not it will purse charges against the OTP… A position outside the current mandate of this court!

    6) without witnesses, the other question before the court is whether there is need to have redacted documents anymore… protecting whom and what? The narrative behind these redacted statements needs to be exposed to identify those behind the script, using Kenyans to pursue their own agenda!!

    Point – the case is over! The truth is being tactifully hidden behind court proceedings. The victim Kenya has not yet been served!!!

  23. kindly terminate the case if there is no enough evidence …….. remember if those suspects were guilty there would not be in there political seat especially Deputy President WILLIAM RUTO

  24. Hi Eddie karunga. You really hate W Rutto to an extent that you want hi. Jailed even with or without any mistake. Pole .he is also human just like victims. God judge.

  25. Eddie chose another blog.You seem to have a consistent point but the presentation of it portrays a deeply desperate and hopeless man clutching to straws.They cannot help you here anyway.You are just thinking like bensouda.

  26. yes my friend Eddie karungu you indicated that mr kipyegon qualifies to be the village elder and based on that knowledge, i assume that you know the people who fixed ruto in icc. pls own up.

  27. eddie,do not disparage mr kipyegon afterall eglish is our third language .get the message as this is not an english exam

  28. Kenya is a state that is currently embracing reconciliation between the conflicting parties. the accused individuals chose the ICC since they knew they were innocent. Bensouda’s request to atricle 68 is a sacrificial stunt to ensure that the two accused individuals are crucified for the sins of they did not commit. The prosecution never did Substancial work it’s research in Kenya before in the evidence against the accused. Remmember a witness can be hostile for many reasons apart from bribe, and intimidation. And it has never happened before that the use of recanted testimonies from hostile witnesses is added to the evidence. Africa looks upto the ICC to reach to a verdict that will be just and fair. Kenyans are watching. God is watching. And so we will pray to Him who is Greater than ICC. Our leaders will all be back home safely.

  29. most people here are speaking for Ruto. we forget the orphans and the widows the poor and the homeless.Let justice prevail like Karungu says. This habit of being used by irrational politicians should stop. After that the accused can say who they were working for or they die as sacrificial lambs.God is the master judge and Bensouda is not against Kenya she is against injustice

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