International Justice Monitor

A project of the Open Society Justice Initiative

Ruto and Sang Defense Want Trial Chamber Decision on Witness Statements Reversed

The Appeals Chamber of the International Criminal Court (ICC) is set to announce on Friday its decision on whether statements five witnesses gave to prosecution investigators can be used as evidence in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Lawyers for Ruto and Sang have appealed the majority decision of Trial Chamber V(a), made on August 19 last year, to admit the statements of five witnesses as evidence in the case against their clients. The lawyers filed their appeals in October last year. The prosecution filed their response in November.

The African Union (AU) Commission filed observations as a friend of the court after the Appeals Chamber allowed it to do so. In an October 12 decision, the chamber, however, did not allow Kenya, Namibia, and Uganda to file their observations as friends of the court because the chamber said their observations would duplicate what the AU Commission was going to submit. The Appeals Chamber also noted that the AU Commission was making the submission on the basis of a June 2015 decision by the AU’s heads of state and government.

Ruto’s and Sang’s lawyers have argued seven grounds for appeal in their submissions. The Ruto defense filed their appeal on October 5. The appeal from the Sang defense followed on October 13.

Originally, the Ruto defense had raised 11 grounds for appeal when it applied on August 26 to Trial Chamber V(a) for leave to challenge its decision before the Appeals Chamber. The Sang defense raised 10 grounds for appeal in its August 25  application to Trial Chamber V(a). On September 10, the chamber allowed them to appeal its decision but reduced and merged their reasons for appealing to seven.

The defense’s grounds to appeal can be grouped into three sets of arguments. The first is whether the majority in the August 19 trial chamber decision was correct to apply Rule 68 of the court’s Rules of Procedure and Evidence to allow those witness statements as evidence. The second set of arguments is that irrespective of whether Rule 68 applies in this case, the trial chamber used the wrong standard of proof to allow the witness statements to be admitted as evidence. The third set of arguments is that even if Rule 68 applied in this trial, the witness statements in question did not meet the criteria set out in the provisions of Rule 68 that the trial chamber relied on to admit them as evidence.

Both defense teams have argued that the majority of Trial Chamber V(a) erred in using Rule 68 in its current version because it includes amendments made after the trial of Ruto and Sang had started. The trial began in September 2013 and Rule 68 was amended in November 2013. The trial chamber used the amendments to Rule 68 to allow the admission of the statements of the five witnesses as evidence.

The Ruto and Sang defense have argued the trial chamber is retroactively using those provisions and, in their view, this is not allowed in the court’s founding law, the Rome Statute. The defense have argued that Article 24(2) and Article 51(4) of the Rome Statute do not allow its provisions to be used retroactively to the detriment of an accused person. Sang’s defense argued further in their appeal that during the negotiations to amend Rule 68 in November 2013, state parties agreed that the amended Rule 68 would not apply in the trial of Ruto and Sang. This is the defense’s first ground of appeal.

The second set of arguments the defense have argued is that irrespective of whether the amended Rule 68 applies in this case, the trial chamber used the wrong standard of proof to allow the witness statements to be admitted as evidence.

Rule 68 has a provision that allows a witness’s statement to be admitted as evidence in a trial if there is evidence that that witness was interfered with. In their appeals, both the defense of Ruto and Sang have argued the evidence that a witness has been interfered with should meet the beyond reasonable doubt standard. They also argued that the trial chamber did not provide a clear standard when evaluating the prosecution’s evidence of witness interference. The defense said this was a deficiency considering this was the first time the amended provisions of Rule 68 were being used in a trial.

The third and final set of arguments the defense have made is that even if Rule 68 applied in this case, the witness statements in question did not meet the criteria set out in the provisions of Rule 68 that the trial chamber relied on to admit them as evidence. The defense have argued that the statements the witnesses gave prosecution investigators are unsworn and therefore cannot be “previously recorded testimony” as provided for in Rule 68.

The defense said that four of the witnesses did testify in court and recanted their statements in court. The defense said this is another reason their statements cannot be admitted as evidence using Rule 68. They said the trial chamber erred in determining that the witnesses had failed “to give evidence in a material aspect” and yet the witnesses testified in court and recanted their statements.

The defense further said in their appeals that the witnesses’ entire statements should not be accepted in evidence. They said as four of the witnesses testified in court, only those parts of their statements they testified on in court should be admitted as evidence.

The defense also challenged other criteria in Rule 68 that the trial chamber used to admit the statements as evidence, including the trial chamber’s assessment of the indicia of reliability of the statements and the assessment of whether admitting those statements served the interests of justice.

In conclusion, the Ruto defense have asked the Appeals Chamber to reverse the August 19 decision of Trial Chamber V(a) and, where relevant, refer the decision back to the trial chamber to make further determinations. Sang’s lawyers have simply asked the Appeals Chamber to reverse the trial chamber’s decisions and determine that the statements of the five prosecution witnesses are not admissible as evidence against their client.

The prosecution responded to both appeals in a consolidated response filed on November 3. The prosecution challenged all seven grounds of appeal, referring often to the reasons the majority of Trial Chamber V(a) gave in support of their August 19 decision. In their response, however, the prosecution spent more than half of their 96-page submission arguing why Rule 68 applied in this case and that the trial chamber used the correct standard of proof in evaluating whether the witnesses had been interfered with. The prosecution has asked the Appeals Chamber to dismiss the appeals.

Charles Chernor Jalloh, in his submission on behalf of the AU Commission, referred to transcripts of the Assembly of State Parties of November 2013 to show that Kenya, Nigeria, and South Africa accepted amendments to Rule 68 on the basis that those amendments would not be used retroactively in cases that were ongoing at the time. Jalloh, however, said it was not clear whether it was the ICC prosecutor or a court official who gave that assurance. In his observations to the Appeals Chamber, Jalloh said it is up to the chamber to validate to “a legal certainty” who may have given such assurances. In his observations, Jalloh said that applying Rule 68 as amended in 2013 in the trial of Ruto and Sang would be detrimental to their fair trial rights and urged the Appeals Chamber to consider that in its decision.

Judge Sanji Mmasenono Monageng, who is a member of the Appeals Chamber, asked on September 16 last year to be excused from hearing this particular appeal. Judge Monageng wrote to the ICC Presidency explaining she had been involved in discussions leading up to the adoption of the amendments to Rule 68, and those discussions could be construed as having a bearing on the appeal. She said she was aware of news articles alleging that court officials had given assurances that the amended Rule 68 would not be applied to the Kenyan case. She said she considered those allegations without foundation or merit, but she thought it would be best if she was not involved in the appeal.

The ICC Presidency accepted her request not because they were concerned with any bias on the part of Judge Monageng but because they were concerned with the “appearance of grounds to doubt her impartiality.”

Judge Monageng was replaced on the Appeals Chamber by Judge Peter Kovacs. The Presidency of the ICC is composed of Judge Silvia Fernández de Gurmendi (President), Judge Joyce Aluoch (the First Vice-President), and Judge Kuniko Ozaki (the Second Vice-President).

The Appeals Chamber is scheduled to announce its decision in open court on Friday at 16:30 The Hague time.

8 Comments
  1. Ruto and sang are wasting their time… goose already cooked and the whole narrative is toward a conviction. The ICC appeal chambers will rubber stamp the prosecution theory/submissions.

  2. Salaams.

    A very simple question to foregoing furore, if I may be allowed to call it so, is, regarding W S Ruto’s ICC case at the national [as well as lately, the African scale], why does a matter that’s concerning an individual in his private capacity, get elevated to such levels as to, by inference, overshadow regional events of more prime significance such as the Burundi Crisis, at the recently-concluded AU summit? The law, as clearly expressed, is no respecter of persons.

    Why seek to circumvent the process as if the victims don’t al all matter, a situation in which the angle’s conveniently presented by the proponents of the ‘Termination’ option that does furnish a perspective that inclines to project W S Ruto as an unfortunate victim of a malicious witch hunt, “For people from Africa,” yet he, W S Ruto, was among those who loudly said, “Don’t Be Vague; Ask For Hague?”

    If, indeed, he’s guiltless, the due process’ll exonerate him otherwise what he [more so those who’re on record as having publicly admitted to’ve fixed him] fervently’s seeking to do as he purports to look for justice, is prematurely halt a course for self-preserving reasons.

    When Judge Sanji M Monageng excused herself from deliberations concerning the status of Rule 68 as applies to W S Ruto’s case, in a nutshell she’s reported pertaining to the view held by parties that were arguing that this rule, 68, was inapplicable, that, “She said she considered those allegations without foundation or merit.”

    The due process must be allowed to follow its course, uninterrupted. No matter what.

  3. Background: A History of Unresolved Violence

    Kenya’s December 2007 presidential and parliamentary elections were followed by a period of intense violence and political unrest. Allegations of electoral manipulation intersected with ethnic tension, boiling over into fighting, riots, acts of rape and assault, and bloodshed. The postelection violence resulted in an estimated 1,100 deaths and widespread destruction and displacement.In January 2008, the two main political parties—incumbent President Mwai Kibaki’s Party of National Unity and Raila Odinga’s Orange Democratic Movement (ODM)—agreed to negotiate. They established an uneasy peace and called for the creation of a Commission of Inquiry on Post-election Violence (CIPEV, or Waki Commission) and an Independent Review of the Elections Commission (IREC) to investigate the crisis.The Waki Commission and IREC completed their work in September and October 2008. Their recommendations included:Creation of a special tribunal to prosecute perpetrators of post-election violenceA constitutional reviewEstablishing a Truth, Justice and Reconciliation Commission (TJRC) to investigate past violationsMajor police force reform and the merging of Kenya’s two police forces—the Administration Police and the Kenya Police ServiceThe implementation of these recommendations has begun. A new constitution was adopted in August 2010, and some reforms were instituted, most notably in the judiciary.But the pace of reforms has been slow. The proposed Special Tribunal was never created—the bill defeated in Parliament in February 2009.In response, in March 2010, the International Criminal Court (ICC) announced an investigation into Kenya’s postelection violence. On March 8, 2011, the ICC issued summons for six people—Mohammed Hussein Ali, Uhuru Kenyatta, Henry Kosgey, Francis Muthaura, William Ruto, and Joshua Sang—for crimes against humanity. The cases against four suspects were confirmed in January 2012, but one case has since been withdrawn and three cases remain active. Two of the three remaining suspects, Kenyatta and Ruto, contested the March 2013 Presidential elections and succeeded in getting elected to the two highest offices in Kenya. Kenyatta becomes the second sitting head of state, after Sudan’s Omar al Bashir, to face indictment by the ICC.Collapse

    ICTJ’s Role:

    Prosecutions: ICTJ has continuously urged Kenyan authorities to establish a credible, transparent, and accountable domestic prosecution mechanism. It supports the proposal to create a credible International Crimes Division and is providing assistance to develop the idea.Institutional reform: ICTJ provided, with others, elements of technical assistance and observation in the vetting of the judiciary. It supports local organizations’ advocacy efforts on judicial and police reform. We provide technical assistances to both relevant institutions and civil society organizations to enhance capacity and the delivery of credible reform. We develop briefing papers for key government departments, civil society, and others with an interest in judicial and security sector reform.Truth-seeking: ICTJ helped Kenyans successfully lobby for amendments to the amnesty provisions in the bill establishing the TJRC. We took a lead role in successfully pressuring the TJRC’s Chairman, Ambassador Bethuel Kiplagat, to resign after serious allegations were made of his past involvement in human rights violations, and when he stepped down, albeit temporarily, we offered technical support to the commission. However, the TJRC has failed to finish its work and issue a report within the statutory time limit. With several extensions, its report is scheduled for release in May 2013. We support truth seeking from below by building the capacity of local organizations to undertake documentation of human rights violations.Reparations: ICTJ comprehensively studied the reparative needs of victims of human rights violations from the 1950s to 2008. For the first time, victims voiced their opinions on the direction of Kenya’s unfolding transitional justice process. An ICTJ report, titled “To Live as Other Kenyans Do: A Study of the Reparative Demands of Kenyan Victims of Human Rights Violations,” was published in July 2011. It has been influential in informing Kenyan civil society efforts to draft a reparations framework and a draft reparations policy to be used as a tool for advocacy with the TJRC and the Kenyan government.
    LETS BLAME NO ONE FOR THIS. OUR LEADERS BROUGHT IT UPON THEMSELVES, THINKING THEY CAN MANIPULATE AND FOOL THE JUSTICE SYSTEM. THE KENYAN 1 WITH MUCH EASE, BUT NOT AS EASY WITH THE INTERNATIONIONAL COMMUNITY 1. WE VOTED AND PRAYED FOR YOUNGER LEADERS BECAUSE WE THOUGHT, AWAY WITH A CORTUPT CULTURE AND IN NEW, FRESH BLOOD THAT WILL REFORM THE COUNTRY AND FREE IT FROM OPPRESSIVE PREVIOUS GOVERNMENTS THAT WERE CORRUPT. BUT WE SEE HERE THAT THE YOUNGER LEADERS ARE WORSE OF, ×2 MORE THAN THEIR PREDECESSORS. THIS NEED TO CHANGE. WE KNOW WHATS GOING ON. BACK TO THE ICC. STILL EAGERLY AWAITING TODAYS RULING THAT THE DEFENCE FEARS SO MUCH, AS IT WILL WEAKEN THEIR CASE. ONE WONDERS WHY?? MEAN WHILE, WHY HAVENT THE DISPLACED PERSONS BEEN SETTLED 10 YEARS ON, OUR GOVERNMENT NEED TO BE SERIOUS. WHEN WE GET TO PERLIAMENT, WE EASILY FORGET WHO PUT US THERE, UNTIL THE NEXT GENERAL ELECTIONS. GOD BLESS AND CHANGE THE HEARTS AND MINDS OF OUR LEADERS. THAT THEY MAY SERVE OUR NATION WITH CLEAN HANDS.

  4. Wether Appeal Goes Thro’ But Justice For All Victim And Accused.

  5. We will get there in end. Defence are celebrating, but prosecusion not yet knocked out, though floored. Lets wait and see what the next round brings. The blood shed of the innocent shall not go unpunished, for as long as God almighty, the God of Abraham,Isaac, and Jacob seats on the throne.

  6. The waki report was not faultless as we believe and we have never had a chance to interrogate it as a country to know the truth of its contents or lack of it.Again you do not an innocent man for the crimes of a society and I believe justice will prevail for the accused and victims

  7. But again, judging the wrong persons with the aim of achieving justice for victims is uncceptable by God too. Likewise, the use of false and cooked evidence is not acceptable also. The violence was sponteneous and the perpetratous/culprits are those who directly burnt, killed, looted and did other inhuman acts to other Kenyans…….The law should follow this people……

  8. If only someone did speak up and condemn those acts! I know they(Kales) would have listened to him. I wonder who though?

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