Defense lawyers have argued the prosecution needs to prove beyond reasonable doubt allegations of witness bribery and intimidation before the International Criminal Court (ICC) can consider whether to admit some witness statements as evidence against Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Lawyers for Ruto and Sang made the arguments during a status conference on Thursday. Trial Chamber V(a) convened the conference to hear submissions on a prosecution application requesting the judges to admit as evidence against Ruto and Sang statements by witnesses who failed to testify in court or were declared hostile by the trial chamber.
The prosecution wants the chamber to consider admitting the statements of as many as 16 witnesses because they were the target of “a scheme” to interfere with prosecution witnesses through either bribery or intimidation. The prosecution argued in its application that Rule 68 of the ICC’s Rules of Procedure and Evidence allow for previously recorded statements to be admitted as evidence if it can be shown the witnesses had been interfered with.
The prosecution filed its application on April 29 as confidential, and a redacted version was made public in May. The defense have since filed, also under confidential cover, their responses to the prosecution application, but they and the prosecution referred to parts of those responses in their submissions on Thursday.
Ruto’s and Sang’s lawyers said on Thursday that the prosecution’s allegations of witness bribery and intimidation have not been tested in court, so when the chamber considers the application, it should determine whether the allegations of the prosecution satisfy the “beyond reasonable doubt” threshold.
“The prosecution, in framing their case, have talked about a campaign of interference of witnesses, and it is vehemently denied … Mr. Ruto or people acting on Mr. Ruto’s behalf have interfered with witnesses,” said Karim Khan, Ruto’s lead lawyer.
Joseph Kipchumba Kigen-Katwa, who represents Sang, said that in case the judges decided the prosecution did not need to prove its allegation beyond reasonable doubt then the chamber should consider applying a threshold between a balance of probabilities and beyond reasonable doubt.
Both Khan and Kigen-Katwa argued that the rule the prosecution pegged its application on did not apply in this case because that rule was amended in November 2013 after the trial against their clients had already started. They also argued that using Rule 68 as amended would be to the detriment of their client’s right to a fair trial because it was not in effect before their trial began.
Both lawyers also argued that the prosecution had the opportunity to show that the previously recorded statements were true when some witnesses were compelled to testify in court. Khan and Kigen-Katwa said the prosecution did not use that opportunity when the witnesses testified live. Instead, the defense lawyers claimed their own questioning of the witnesses during live testimony proved that the previously recorded statements provided to the prosecution were not true.
Kigen-Katwa went further and said that though one of the charges against his client is that he is a member of a network that is alleged to have organized violence in Kenya after the December 2007 election, not a single prosecution witness supported that charge. He said the same applied to the charge that his client helped raise funds to finance the violence as well as the charge that his client attended meetings where the violence was discussed.
“We would like to say they [the prosecution] elected not to ask the witness[es about the charges] and probably they feared the witness would give an explanation that would render the truth of those allegations untenable,” Kigen-Katwa said.
The lawyer for victims, Wilfred Nderitu, said it seemed there was confusion about the subject of discussion. He submitted that the question was whether to admit previously recorded statements of witnesses and not whether those statements were credible.
Nderitu also said that the issue of reliability of a statement raised in Rule 68 was not about the content of such a statement but “the time, place, circumstances that the statement was recorded.”
“In sum what I would say is there is occasion for admission for the prior recorded testimony,” Nderitu submitted. “The probative value [is] a question for another day.”
During the morning session, Presiding Judge Chile Eboe-Osuji asked senior trial lawyer Anton Steynberg what standard of proof the prosecution thought it needed to satisfy and whether the quantity of the evidence presented to the court mattered as much as the quality of that evidence.
Judge Eboe-Osuji observed that the prosecution had submitted 231 materials that ran to 1,957 pages. He said of those only 21 items had already been admitted into the court’s record. The judge said this left 210 items running to 1,669 pages. He asked whether it was necessary to consider the material that was not already on record.
“The reason I raise it is that you say, rightly, that we had cautioned in the past that evidence of that nature is tangential to the case,” said Judge Eboe-Osuji.
Steynberg argued that the materials were essential to backing their case that the reason for the witnesses failing to testify or recanting their statements in court was interference by people who claimed to be acting on behalf of Ruto.
“Even with the 200, the defense is still arguing we have not made our case,” said Steynberg. “The other issue is that the burden of proof has not been established.”
“If the prosecution has overburdened the chamber, your honors, we apologize for that,” said Steynberg. “We’ve put up the evidence that we thought that was necessary in order to satisfy our burden.”
When Trial Chamber V(a) rose after spending the whole day listening to submissions by the different lawyers, the judges did not give an indication when they would issue a decision on the matter. During a June 5 status conference, Judge Eboe-Osuji had said they would do so before the ICC goes on recess on July 16.