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.
The folly of confirming cases without live witnesses.
Do prosecution really know what they are after? Incompetence is manifesting here.Dogs are barking at their masters’ command.Do the accused know who the witnesses are.
The prosecution has now proved that they have no evidence of whatsoever to nail the accused hence they are asking the court to bail them out by requesting to use false evidence which were confirmed by the prosecution witnesses that they lied to the prosecution during their examination.The case here was a flaw from the word go since there was NO INVESTIGATION by the prosecutor.The huge volume of papers are of no value to the court if it does not carry the TRUTH
had the prosecutor listened to previous attempts to terminate these cases, looking for escape would not be a challenge now! she must now justify her insistence and moreso the resources the court has been sinking.
The witneses droped their evidence and admitted that they were false. some are on record having cited that they had been promised huge rewards if they cooperated with the prosecution. The court should reject that application if not proved.
My initial response is that under English common law, there are exceptions to the rule against hearsay evidence. I need not set these out but they are over ten. One occassion on which hearsay may be admissible in any case, is where witnesses cannot be traced or have died. Hence I find nothing strange about a prosecutor or even a plaintiff asking to rely on hearsay if the circumstances for its admission have arisen.
Second, notwithstanding that the Assembly of States Parties has only recently formally enacted this rule under international law, and even assuming that it was not intended to apply retroactively, nonetheless, my own interpretation is that such time honoured excptions to the rule against evidence whould surely be adopted under customary international law.
However, once admitted, the issue of the believability of the witnesses may nevertheless undermine their evidentiary value. To the extent that some witnesses have not simply disappeared, but are refusing to then the judges need to evaluate what value to attach to the statements of hostile or renegade witnesses. Applying Jacques Derrida’s deconstructionism or Paulo Friere’s pedagogy of the oppressed, then a judge may choose to believe marginalized narratives of populations whose stories are silenced. Here one would read into the body language and context of the recantations and may attribute such reneging to intimidation, bribery or other irrartional distortion.
Nonetheless, the prosecution should ideally have video evidence to show that they cautioned the witnesses appropriately before recording their statements. Such statements ought to have been video recorded in the first place in case or recantation. If the prosecution neglected to video record the statements, then the defence might argue that no cautionary statement was given, or even that the witnesses were bribed by the prosecution etc.
Finally, the standard for admissibility of evidence is on a balance of probabilities that they are reliable, i.e discretionary. The prosecution needs to show that it is more likely than not that the statements were procured accoring to the rules. If the statements are admitted, however, then their allegations i.e. contents must be proved beyond reasonable doubt. Provided that the defences can raise doubt as to the credibility of the witnesses, that doubt should favour disbelief about their statements.
To conclude,prosecution is a serious business. Before you allege chharges as serious as genocide or crimes against humanity, you should catch a suspect in the act; i.e. red-handed, hand-having or in the act. Athough the situation at Nuremberg was based o circumstatial evidence, all of Hitler’s men mantained ledgers meticulously compiling the dates, particulars and identities of each and every Jew who boarded a train, was warehoused or gassed at Auschwitz. While no formal order was given (not even by Hitler), the documents irrefutably showed that a genocidal policy was being systematically implemented. That is what busted Adolf Eichmann at Jerusalem.
In the Kenya cases, the evidence is circumstantial at best or imaginary at worst. It is irresponsible to initiate a case based on circumstantial evidence without solid documents. This business of undertaking post-confirmation investigations sounds like an afterthought. It seems like Ocampo must have anticipated regime change in 2012/3 and hoped that the new leadership would co-operate with renewed investigations. But that strategy falied. He obviously underestimated the uncertainty of African electoral processes (and petitions).If Bensouda is granted a third bite of the cherry, the defences may argue that the process is not even-handed.
In conclusion, an acquital may emerge procedurally, just like an underdog can beat a favoured team on penaties or other technicality. Bensouda’s last gasp tactic lies in sanctioning Kenya as a country for failing to subscribe to so-called “universal” obligations under the Rome Statute. Hence while Ruto and Sang may be set free, the prosecution may yet convince the Appeals Chamber to refer Kenya to the ASP for deploration of conduct in President Kenyatta’s. In such case third party states might then unleash diplomatic and/or economic sanctions which inflict adverse consequences.
@khamala. quite analytical piece. i like uo approach to issues
Its a matter of time and God would act mighthly and satan be ashamed.
Let justice take its course…and if there is no evidence let it be that period…
If witness have testified themselves that they gave false statement because they had been promised huge things, the court MUST take action against them. DP of Kenya and Joshua Sang is to be freed is no enough evidents.
Guys I am rather worried about DP. This is a political court and seems everything is being done to jail him. I am yet to understand why a single and junior political leader then should carry single handedly that burden of 2007 when everybody in the country was guilty of somthing- evil thoughts, actual crime or ommission??