Trial judges of the International Criminal Court (ICC) have allowed statements of five witnesses who recanted them in court or failed to testify to be admitted as evidence against Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Trial Chamber V(a), in redacted decisions made on Wednesday, declined to admit the statements of 11 other witnesses as evidence against Ruto and Sang. The prosecution had applied for the statements of as many as 16 witnesses to be admitted as evidence. The judges of Trial Chamber V(a), however, disagreed on which legal provision was applicable in reaching their decision to admit or not as evidence the statements the witnesses recorded with prosecution investigators.
Judges Olga Herrera Carbuccia and Robert Fremr issued the majority decision in which they said that Rule 68 of the court’s Rules of Procedure and Evidence was the correct provision to use to determine the merits of the prosecution’s application. Carbuccia and Fremr were of the view that Article 69 of the ICC’s founding law, or the Rome Statute, did not apply in this case. This was the alternate provision the prosecution had proposed could be used in assessing their application. Presiding Judge Chile Eboe-Osuji disagreed and in his separate opinion explained why he thought Article 69(3) was the appropriate provision to use when weighing the merits of the application.
Four of the witnesses whose statements have been admitted as evidence following Wednesday’s decisions had been compelled by court order to testify. Once they appeared before the chamber via video link, each of the four witnesses recanted in part or in whole their previous statements to prosecution investigators and they ended up being declared hostile prosecution witnesses.
Trial Chamber V(a) said they admitted the recanted statements as evidence because both prosecutors and defense lawyers had the opportunity to question the witnesses about the contradictions between their testimony in court and their previously recorded statements. The chamber also said they allowed the statements to be admitted as evidence because during the course of the witnesses’ testimony, allegations of witness interference were made, including in some cases allegations of money being offered to the witnesses to change their statements to the prosecution.
The particular witnesses are not named nor are their court-given pseudonyms used in either Trial Chamber V(a)’s majority decision or in the separate opinion of Judge Eboe-Osuji. But during the testimony of Witness 604, Witness 495, and Witness 516 these allegations may have been heard in private session. In addition to each of them being declared hostile, each witness was also granted partial immunity from prosecution from any offenses that involved interfering with, intimidating or bribing witnesses. These are offenses under Article 70 of the Rome Statute. They were not granted immunity from perjury, which is also an offense under Article 70. In exchange the three witnesses were expected to tell the chamber all they knew about any attempts to interfere with witnesses in any way 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 case of the fourth witness, Trial Chamber V(a) concluded that there were allegations of witness interference, but what may have led the chamber to reach such a conclusion is unclear, because significant sections concerning this witness are redacted in the main decision. What is clear from the decision is that the witness is among the five who have been declared hostile prosecution witnesses so far.
The fifth witness whose statement to prosecution investigators has been admitted as evidence did not testify in court. In their decisions, the chamber said they are satisfied that all efforts were made to get the witness to court and testify, including involving Kenyan authorities and those of an unnamed country to trace the witness.
“The Chamber is, however, satisfied that the witness is unavailable to testify orally due to obstacles that cannot be overcome with reasonable diligence. In reaching this conclusion the Chamber has had regard, in particular, to the fact that all attempts by the Prosecution to contact or trace the witness [REDACTED] have proved unsuccessful, [REDACTED]. The witness did not appear for testimony on the scheduled date,” the judges said in their majority decision.
To date there is only one witness for whom Trial Chamber V(a) issued a public order scheduling a date to testify. This was for Witness 727, who was ordered to be in court on March 23 but never showed. In March, a lawyer representing Witness 727 said he had gone into hiding because he feared for his life if he testified.
While analyzing the reasons for admitting into evidence the statements of the five witnesses, the judges made clear that doing so was not the same as making a judgement on the strength of the statements as evidence.
“In this regard, the Chamber emphasizes that ‘its assessment of evidence for the purpose of admissibility is a distinct question from the evidentiary weight which the Chamber may ultimately attach to admitted evidence in its final assessment once the entire case record is before it, for the purpose of the verdict in the case’,” the judges said.
Of the 11 witnesses whose statements the chamber declined to admit into evidence, nine of them did not appear before court. Only one of them testified in court but the judges said there was no evidence of witness interference in the case of that witness.
To back their application that the statements of the 10 who did not testify should be admitted as evidence, the prosecution submitted documents to show what they considered evidence of allegations of witness interference involving the nine. The judges decided this was unnecessary. Trial Chamber V(a) said it already had in evidence documents and material detailing allegations of witness interference.
Judge Eboe-Osuji said in his separate opinion that 21 materials had already been admitted into evidence, numbering 288 pages, before the prosecution’s application. He said that as part of their application the prosecution submitted an additional 210 materials, numbering 1,669 pages.
“The Prosecution’s arguments do not reveal any clear difference between what the admitted evidence and the additional material tend to show, such as would make the latter non-cumulative,” wrote Eboe-Osuji, explaining why he agreed with his fellow judges that the additional material was unnecessary.
In their decisions Trial Chamber V(a) did not indicate what next is scheduled in the trial of Ruto and Sang. With Wednesday’s decisions, it is expected that the prosecution will indicate when they will close their case since most of the witnesses the prosecution expected to testify have done so.
Ruto and Sang have been on trial since September 2013 on three counts of crimes against humanity for their alleged roles in violence that followed the December 2007 elections in Kenya.
As expected they have done it.Rule 68 of Rome Statute was not to apply in Kenyan case.ASP President was in Kenya the other day before the dust settles controversial ruling is delivered he must have left the message anyway.Do Ruto and Sang not deserve a fair hearing or they belong to animal kingdom.
Is the court an extension of the prosecution?
The ICC will eventually end up as a kangaroo court. What type of court would allow evidence the defence says that was procured and believe the prosecution the witnesses were bribed to recant evidence.
where on earth can unsworn witness taken as evidence.
If icc wants to do justice and be respected they should not allow prosecution’s cooked evidence or else lose dignity.
Is the ICC crazy? Bensouda must having personal grudge with DP and the judges deliver ruling as per orders. How can selfe-confessed criminal witnesses be trusted? OK they talk of a network and some witnesses were members so curlprits are within parameters of ICC.
The function of the court is to decide case according to the evidence. (Not to seek the truth). On one hand, there is the public interest of vindicating the rights of victims. On the other hand, suspects should not be subjected to prejudice. In common law systems, the onus of proof lies on the victim (represented by the state) to justify the need to interfere with an innocent suspect. hence, under domestic law, in ordinary crimes where there are few victims, suspects rights are strong. However, in international courts, where there are mass victims, then victim’s interests hold sway.
The situation we are dealing with concerns fear. Suppose a witness tells a policeman about a crime but is too sacred to testify inside court? Or suppose a judge notices that a witness is clearly frightened while testifying. What happens? If the witness has refused to attend court out of apprehension, then under common law, the court may admit first hand hearsay. If the witness is already in court, the judge may proceed in camera or even allow hearsay.
In short, notwithstanding the fact that the ICC has expressly permitted absentee witness statements, common law practitioner would hardly be surprised by admissibility of the so-called hostile witness statements given the circumstances surrounding the case. Obviously there is the issue of credibility of lying witnesses which may reduce their reliability.
Technicians still require further work to distinguish why only five out of 16 were admitted. And Why the three judges relied on different rules or arguments. In the end, law is not a respecter of persons. Status should not matter. If there is a rule it should apply equally whether to George W. Bush or Saddam Hussein or whoever. Otherwise the law and the court loses legitimacy.
One effect of this decision, if it is upheld on Appeal, is that now there is no need for Bensouda to withdraw her case against Ruto and Sang – as happened for Ali, Kosgey, Muthaura and Kenyatta. Instead, perhaps early next year defence may be required to make its “no case” submission which will entail evaluating the weight of all prosecution evidence. (Sometimes accused persons do not make a “no case” submission, but we expect Ruto and Sang’s lawyers to do so).
There is no way we can speculate on the Trial Chamber’s ruling. Whichever way it goes, there is likely to be an appeal. This is likely to last throughout 2016. Assuming that victim’s interests prevail and a “prima facie” case is deemed to have been made out, then the Deputy President may be highly distracted from defending his elective position in 2017. He may logistically be required to focus all his energies and resources proving his innocence. Will President Kenyatta be able to sustain Jubilee’s unity amid whispers that their respective communities have had different fortunes before the ICC? Or will Ruto’s community prefer to re-link with ODM?
With this new “evidence” against DP Ruto and former radio journalist Sang, and coupled with the re-opening of the (non)co-operation decision against Kenya, there is potential for political re-alignment. The international community seemed to have mended fences with the Jubilee government, only to re-open healing wounds. Kenya is drifting back to where it was in 2012 except that President Kenyatta is secure as an individual since his prosecution has been terminated. The ICC Kenyatta Trial Chamber shall be closely monitoring Bensouda’s return to Kenya intended to re-open investigations into his bank accounts, telephone records and other sources of wealth. No prizes for predicting that Kenya is unlikely to co-operate and eventually be referred to the ASP. What next, the international community shall begin sanctions? And/or Kenya pulls out of ICC?
The safest way forward is dialogue with the opposition and enter some form of power-sharing to put forward an agreed settlement whereby victims are paid reparations and Kenyans can collectively put forward a united position telling the international community to keep off our version of “restorative justice.” Alternatively, Jubilee must replicate its 50 + 1 victory in round one of 2017. Regime change may suggest that public opinion favours the Hague process…
I would not worry about these statements being submitted as prosecutor evidence…because they only go to serve the interest of the OTP. That they built a case and are not responsible for the type of evidence provided.
As far as the case is concerned, the case is yet to be proven… which is to say, people have spoken to the courts however, everything the OTP presents has to tie up to the charges… This is not yet shown.
I would be very interested in hearing the courts and ICC’s reasons as to why the trial has taken more than 7yrs to get to this point, just listening to the OTP!!!?
Osuji,you have erred in your judgement to grant prosecution to use recanted testimonies to nail Kenyans.There was no need for the case to proceed.You could as well have used all lies emptied to you earlier.Remember the Chalk Circle.Live long my beloved country Kenya and its leadership we have faith.
what if the witnesses stick to what they have recanted themselves,will Bensouda force them to give evidence the way she wants? This case is heading nowhere.
The case has already been predetermined. Ruto and Sang appeal is a waste of time, the appeal Judges will concur largely with the Trial chamber ruling. It is not rocket science that a certain judge in this case has sided with the prosecution 95% in all court decisions.
Kicks of die horse
Hello am sad to see how the ICC is handling the cases facing the Kenyans .with no doubt history repeats itself… Watch out on the way you are handling it or else I see 2007/2008 wounds to Kenyans I suffer when I remember how our people died.be serious and stop giving us headache ..from my view when ocampo said that he was told by US diplomats on these issues… It complicated your decision.. Please quit the case you are stressing us..especially I say with no doubt that the blacks are the one tried in ICC is ICC for African countries or what please answer me ..I stand here lamenting.. Osuj and the group answer us.
icc is nw apolitical avenue which prejudice kenya in favour of political gain to some individual. rule 68 was amended on 201when the case was already began,
This court is truly kangaroo. What will you do then if the same witnesses turn out for the defense. Are you just extending the proceedings for the sake of it? Don’t you have something else to do? are you idlers? please end the drummer. Give us a brake. This cases are as good as over.
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