Issue of Standard of Proof Dominates Final Day of “No Case to Answer” Hearings

The issue of what standard of proof judges should use when considering defense applications for the acquittal of Deputy President William Samoei Ruto and former journalist Joshua arap Sang dominated the final day of hearings on those applications.

Lawyers representing Ruto and Sang have applied to the International Criminal Court (ICC) to dismiss the case against their clients before they present their defense. They argued on Wednesday and Thursday that the prosecution had failed to produce evidence to support allegations that Ruto and Sang had been involved in the violence that erupted after the December 2007 elections in Kenya.

Both men have been charged with three counts of crimes against humanity for their alleged roles in violence in the Rift Valley region. They have been on trial since September 2013. The defense filed “no case to answer” motions following a decision by Trial Chamber V(a) to allow such applications once the prosecution closed its case.

In their written submissions, the defense have argued that the standard of beyond reasonable doubt should be used when assessing the prosecution’s evidence and whether the defense should present their case.

On Friday, the lawyer for victims, Wilfred Nderitu, dealt at length with the issue of what standard of proof should apply in assessing the acquittal applications as he sought to answer questions Presiding Judge Chile Eboe-Osuji asked him on the matter. Senior trial lawyer Anton Steynberg also spoke on the issue as he responded on Friday to the defense submissions on their “no case to answer” motions.

Nderitu said that the emphasis at this stage of the trial was not on proving the facts of the case, except if the evidence presented was beyond belief.

“We are saying that the threshold that is required at this stage is a rather low one for the prosecution to attain,” Nderitu told the judges.

He also pointed out that when Trial Chamber V(a) issued its June 2014 decision on principles and guidance on “no case to answer” motions, no one objected to the judges’ guidance that the threshold of proof they would be considering would be lower than beyond reasonable doubt. Steynberg, who spoke after Nderitu, also raised this point.

Later Judge Robert Fremr asked Steynberg about his assertion on Tuesday that the prosecution’s evidence should be assessed on its quantity rather than its quality. The judge asked how this assertion applied in light of the principle of a fair and expeditious trial provided for in Article 64 of the ICC’s founding law. Judge Fremr also asked whether the prosecution evidence’s would remain the same or improve if the defense were to present its case.

Steynberg responded that it would not be unfair to ask the defense to present their case if the prosecution’s case met the standard the chamber had laid out in its June 2014 decision. He also said that there have been cases where parts of the prosecution’s evidence has been weak but has improved when the defense made its case and the prosecution called rebuttal evidence.

A matter that had been pending since Tuesday was whether the defense would stand on their applications for acquittal and rest their case irrespective of what decision the chamber reached on those applications. This matter was raised by Presiding Judge Chile Eboe-Osuji on Tuesday when he observed that this happened in some jurisdictions where “no case to answer” motions were allowed. Judge Eboe-Osuji emphasised that the chamber was not saying the defense was required to stand on their applications, but the chamber wanted to know if that was the case.

On Friday, Sang’s lead lawyer, Joseph Kipchumba Kigen-Katwa, said his client had instructed him to wait until the chamber had made its decision before deciding whether to present his case. Ruto’s lead lawyer, Karim Khan, said he would also wait until the chamber had made its decision before deciding the next steps he would take.


  1. The case had fallen very long time ago,alot of allegations.such case ashamed i.c.c court intergrity.

  2. there is no case to answer there coz we already settled n moved on.No need of leaders wasting time to travel from kenya to netherland instead we should be dvloping our country

  3. Our dear brothers hv no case to answer.Let icc leave Kenya n Kenyans alone bcse we hv many other +ve things to do than wasting our tym to Netherland every now n then.Bure kabisa potelea mbali.

  4. i think as kenyans we should further reignforce articles 1 and 2 of our constitution.justice can also be found in the same land that violence occured.article 2(1)of our constitution illustrates that beyond doubt that international law cannot subject the peoples sign of unity’Dp’before trial.this should mean that all kenyans in the vise versa of this statement is true’….prusumed innocent till proven guilty’.if prisiding judge chile..can rule that means that Ringera j can also do the same in our land’

    1. How comes we never investigated it in Kenya? And do u think, it could have been solved fairly? Without Mr Ruto manipulating it? Our justice system is a joke. It protects criminals and punishes the innocent, especially those without money. Our people are still being killed, but the Kalenjins hide the murderers deep in the Rift Valley. Is this what we are calling justice in Kenya? Mr Ruto should have condemned this cowardly onslaught, and distanced his party from this barberic act. But it tells a different story when now, we want this to stop and I’m sure he regrets not coming forward and openly distancing himself and his party from his tribal guys that killed in the name of his party. This guys attacked even my local police station, with my tribal young men, forced on the frontline, by this armed bandits. With military involvement to protect the police station, all this young men, arrested and forced onto the frontline perished and their bodies left to rot in the street, and later turned to swine food. You Kales call this self defence, but the world agrees with us in calling it “Crimes against humanity.” Atleast, the Kibaki and Raila government, sent GSU, the army And police reignforcements in affected arears, what did Ruto do? He did not even condemn his peoples actions. Let him face the music. Let the ICC judge give the verdict. And we will stand by it. But the victims, innocent blood will still hound those who spilt/shed it, their families for generations to come.

  5. since there was no proper investigation done by former prosecutor and the sitting prosecutor, they both rely on hearsay and the case collapse long before the trial began

  6. God is always on the Right stand to defend His people. The case is over!! stop faking it. anymore…Let our brothers come n focus in NationBuilding…ala!

  7. they should b left alone 4 them 2 focus there minds in our national development.hakuna kitu walifanya!!!!!!

  8. Iccabortion sign is observed by a whole world unfair court, village Elders court is better than this

  9. Kindly give country Kenya a break. We appreciate most heartedly what the court has far gone but we now regret irrelevancies the prosecution has since posted. it has diluted everything and has made things appear like nothing happened. Prosecution lost in wildly imagining instead of doing well it’s homework

  10. Raila and Kibaki were at the center of dispute when the PEV erupted. It’s ironical to victimize Ruto and Sang for they come from then political divide that represent Odinga’s ODM. people will ask whether judgment was biased, predetermined or aimed at punishing them for what the quilt that never was. Repercussions may be far reaching and may only make things worst.

  11. The thuo have no case to be question of:moreno ocampo did not do his investigation well he depended on waki report which was there to protect RAILA ODINGA, KALONZO AND KIBAKI.
    it’s true there was election rigging, as kivuthu was paid millions by the government to be announced the winner. (KIBAKI)
    then questions are if true KIBAKI won why was he be sworn at night.?
    if RAILA did not demanded country wide demonstration would kenyans (victim ) could be killed?
    if KALONZO had not know who had win the election, will he unexpectly join KIBAKI then be vice president?
    these are people who cause eviction of post election victim s, death and destruction of properties.
    RAILA to be question, I do blame for the killings in kenya 2007/2008

  12. Case collapse long ago,coz every Kenyan knows that neither RUTO nor sang participated in the said post election violence,the violence erupted due to election irregularities ,ICC investigation were not proper since they depend on one side of political rival’s in Kenya,

  13. the prosecution heretofore has failed to produce compelling evidence on this matter. let the case be overruled.

  14. I wish to see transparency in the case if something good will come out. Let each person carry his/her own cross

  15. ICC convictions attract long and painful sentences. It goes without saying that the level of guilt must beyond reasonable doubt for justice to be seen to be done. It does not help those affected to drag the trial for lengthy periods and convict or acquit long after the damage caused to either party is embedded in the minds of those affected. perhaps other resolution mechanisms might work better than what we are witnessing.

  16. My fellow Kenyans, are you just talking for the sake of talking or do you have a point to make? Kalenjins, Pokots etc are heavily armed todate, since and even before the 2007 elections. These heavily armed tribes, representing H.E Mr Ruto, and Mr Sang, attacked, killed and injured inoccent and unarmed fellow Kenyans of other neighbouring tribes. Many were left homeless, ophans, widows, farms and homes looted, livestock and property stollen, women raped etc. No one has todate said sorry for those atrocities, no compensation has been paid, the armed tribes are still armed almost 10 years later, people are still being killed by this weapons as we speak, the latest being my blood brother on Christmas day, shot by an arrow by a Kalenjin, whose todate not arrested as he is related to the Inspector General of Police(formerly Police Commissioner post). My brother is his 4th victim, all shot by arrows and yet we have been denied justice. This is the 21st Century, we live in a civilised world, their are humanitarian Organisations through out the world, and yes they are NGOs. Justice has to be served by the ICC, and the rest of the world. Everything HE Mr Ruto and Mr Sang are accused off, has been investigated. Let’s allow them do their work. If they played no part, then we have nothing to worry about as they are innocent and will be acquited. After all said and done, Kalenjins need to be disarmed. In my home town, my brother was the 7th victim to be killed by the and only last Saturday another male, a boda boda was burried, the 8th victim since the 2007 ethnic cleansing. Why do you make it look like its all been dealt with and we should move forward, when my people bordering Kalenjins are still being murdered? And further more, non of the murderers are locked up. Surely, my fellow Kenyans, we call this shedding of innocent blood, democracy? We need this groups disarmed, for without this weapons, then we can ressort to dialogue to ressolve all our differences. God bless Kenya.

  17. fellow kenyans, no one celebrates what happened in 2007/2008. the case already before court. let the court determine. if they have a case to answer well and good if they dont well and good. those who lost their loved ones know that God is judge of judges. God bless kenya and Netherlands

  18. just with your sobber u thing the two only guys from the same ethnic group out of 42 caused havock the whole country? icc is wasting tym n making money out of these case.please let common sense prevail in your brains.why waste alot of tym walking from truth in the name of looking for justice.ruto n sang are from eldoret,what of other parts of the country who caused comotion?stop being hallots u guyz

  19. Salim Joel, you shouldn’t talk if you didn’t loose anyone. Eldoret and Kitale are our nearest towns, my people leave here. Luhyas and Kikuyus plus other tribes that borders with the Kalenjins and Pokots in Eldoret/kitale areas, were mercilessly murdered, by heavily armed Kalenjins and Pokots. Genocide/Crimes against humanity really happened in our communities. My brother was a victim of a Kalenjin arrow, last christmas night with another male just buried just over a week ago, in total 8 murders by Kalenjins in Kongoni, Matunda areas. My local police station, let go of the male in question and not interested in arresting him because the OCPD is a Kalenjin and so is the Kenyan Police Inspector General. This Male is a serial killer, protected by this incompetent police officials on tribal grounds. No papers are willing to publish his identity because he is related to someone in authority. Going back to 2007 Post Election violence, lots of our men were killed, women raped, pregnant women cut open and fetus removed, killing babies and mothers carrying them, disable people who could not run for their lives were set ablaze, and you are offended when innocent and unarmed people were killed by this heartless monsters? Let The ICC, speak out and expose this cowards, who are to date still armed to their teeth, and continue to use those weapons to kill innocent people and are protected by the police force and the government from prosecution. Our Kenyan Government has lost the plot, its credibility, integrity and purpose. This armed tribes, are cowards, who cannot solve issues through dialogue, but turn to weapons and act cowardly, while our government stands and applauds. We are an Independent nation, a democratic state that are supposed to handle our affairs internally and yet we have failed to excercise integrity and pride in such matters as this. We will not leave the Rome treaty, as we have shown we can not govern ourselves. Our forefathers in Jomo Kenyatta and Arap Moi works, whom I have a lot of respect for, has come to nothing. We are corrupt and oppress the poor and needy. We behave like babies that need to be watched all day long less we cause mischief. This blood will hound you, whether you are acquitted or prosecuted at the ICC. You will not destroy our beloved nation. Long live Kenya and those that fight for the good of the country. May God uproot, all those in position of authority that thrive in Criminal Acts and oppress those beneath them. H.E Uhuru and Ruto, you need to call for the disarmament of Kalenjins, Pokots etc if you want to show us that you have changed and need The Luhya vote, and punish those that did kill innocent people, to restore confidence in our criminal justice system. This tribes need to ask for forgiveness of our people, and reconciliation process
    to follow. So we can restore and promote peace, and let bygones be bygones. Cover up will lead us nowhere and this problems will taunt us in many years to come like bad breath.

  20. Its so sad, we still have groups in our beloved country who would Kill and maim others for power sake. What kind of democracy is this? Is it that we, kenyans/Africans are not mature enough like the west and or developed countries to achieve peace and prosperity through Dialogue? And if so, We all need to revert to our respective counties/regions and resort to traditional ways of life which were 100 times better than pretending we are an independent, democratic country. Yet our leaders arm their tribes like the army and set them up against other unarmed tribes, who have no weapons whatsoever to retaliate/defend themselves, as a show of power. And even after these mass murders, they have no guts nor sympathy for the victims families, and carry on killing men/journalists, lawyers, police officers and or anyone that speaks up against such barbaric acts. What world do we leave in? The rest of Ruto and Sang, tribes men have no shame in coming up here on this forum and defend their acts and their men as if nothing happened. They behave like heartless, coward, monsters that have no value to life. No apologies to victim families, and Instead of helping hunt for those serial killers in your midst, and disarming those armed, and seeking for truce with other tribes you put through misery, you come and tell us your Head tribesman and his assailant are innocent of instructing your people to carry out all those murders/atrocities, and worse still, of arming and training them to use those killer weapons. This is the Worlds Court, not corrupt Kenyan courts. Such Crimes have got no place in the society we leave in and are punishable, maybe not under the Kenyan law, but the international law. It worries me when our president says the ICC should acquit Ruto and Sang too, or AU to pull out of the Rome Treaty. Why is he too, trying to cover up this indefensible crimes? There are so many people killed in Kenya under the current government, including my blood brother Hon Gabriel Phillip Sakari, on Christmas day. Is this why, the Kalenjins have been given all the top police jobs, to cover up even murders being committed to date by Kalenjins, like my brother’s? Your Excellency, you need to insert your authority and get this community to disarm, for i fear that in the near future, if they do not disarm, other communities too will start arming themselves, making the police officers jobs useless.As for those who speak up for the accused duo, please get it in your little, stubborn minds, that JUSTICE always prevails in the end. And learn to empathize with the victims families.

    1. No comment bro. When my late bros killer is enjoying freedom, and the police wont even arrest him. Instead Matunda OCPD lies to me and my family that this guy is in Naivasha. Is this the kind of peaceful kenya/Kenyans, we fought so hard to gain her independence for? 8 murders in my area alone by Kalenjins not 1 arrest. U must be kidding me. Which peace? Who is peaceful? Kenyan government and its leaders? No way. I have no respect for them. Unless something changes lol. I fear for our country, which is spiraling downhill at unstopable speed. Lord God have mercy on our beloved Nation Kenya.

  21. Today 5/4/2016 i pray and hope that this case will be thrown away this is due the shoddy work done by moreno ocambo

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