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.