This year two decisions have been eagerly awaited in the trial of the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
One has been on whether the statements of witnesses who recanted their remarks or failed to appear in court can be used as evidence. The Appeals Chamber announced its decision on the matter of witness statements two weeks ago.
Attention has now turned to the other eagerly awaited announcment: Trial Chamber V(a)’s decision on the defense’s “no case to answer” applications. The “no case to answer” submissions have been the subject of public interest in Kenya since early last year. This interest began after the last prosecution witness testified in the trial of Ruto and Sang in January last year.
This was before the defense had filed their “no case to answer” applications. The then anticipated motions were the subject of media coverage and political rallies. That interest rose once those motions were filed in October last year.
The Appeals Chamber’s decision on whether the statements five witnesses gave to prosecution investigators could be used as evidence was eagerly awaited because of the impact such a decision could have on the “no case to answer” motions. On February 12, the Appeals Chamber decided not to allow those statements to be used as evidence.
The impact of the statements on the “no case to answer” applications can be gauged by what the different parties said in their submissions. In its April 29, 2015 application to Trial Chamber V(a), the prosecution had argued that those statements formed a “significant portion” of its evidence. The defense of Ruto and Sang have argued that without those statements, the prosecution has no case against their clients.
Now the key question is when will Trial Chamber V(a) make its decision on the “no case to answer” applications the defense teams of Ruto and Sang filed? The defense have argued in their submissions and before the chamber in January this year that they do not need to present their side of the story because the prosecution has failed to prove the allegations against their clients.
There is no deadline for the judges to make a decision on the “no case to answer” motions. There is also no precedent with which to compare when a decision is likely to be made. This is the first time an ICC trial chamber is considering “no case to answer” submissions.
In fact, even within the court’s founding law, the Rome Statute, there is no deadline by which judges have to deliver any of their decisions. The only deadline judges are required to meet is a 60-day deadline when determining whether to confirm charges against a suspect. This deadline is in the ICC’s Regulations of the Court.
The trial chamber, however, will keep in mind the provisions in Article 64 of the Rome Statue that require chambers conduct trials in a “fair and expeditious” manner.
Although Trial Chamber V(a) does not have a deadline by which it must make its decision, there is one way to gauge when the chamber may make a decision on the “no case to answer” applications. This is based on how long the chamber has taken to decide applications that raise new legal questions at the ICC as will the “no case to answer” motions.
Trial Chamber V(a) has considered prosecution applications on whether the court can compel witnesses to appear before it. It has also been asked to decide on whether previously recorded statements of witnesses can be admitted as evidence. All these applications have raised new legal questions at the ICC. In each case, the chamber took about four months to make a decision, from the time the initial application is filed. The chamber has also considered the defense’s application on whether Ruto can be excused from attending all trial hearings. This issue took the chamber two months to reach a decision.
In the case of the “no case to answer” motions, it is likely the chamber will go beyond the four-month mark, which ends this month. The material they are considering is much more than the material they have had to consider in the past.
During a status conference in July last year, it emerged that the judges had 1,957 pages of materials to review in the matter of whether to admit as evidence previously recorded statements of witnesses.
In comparison, for the “no case to answer” submissions, the judges will be reviewing and assessing as many as 6,300 items of evidence and as many as 51,000 pages of materials the prosecution submitted as of February last year. The information on the quantity of evidence the prosecution had submitted is contained in a February 16, 2015 decision the chamber made on a defense application for a disclosure officer.
The 6,300 items of evidence and almost 51,000 pages of materials submitted by the prosecution and disclosed to the defense are what were before Trial Chamber V(a) before the chamber received the prosecution’s application asking the judges to admit as evidence the previously recorded statements of prosecution witnesses who had recanted those statements or failed to appear in court.
Together with the materials, the judges will also be reviewing the testimony of 29 prosecution witnesses. Four of those 29 witnesses recanted in court the statements they had given prosecution investigators before they testified. The Appeals Chamber ruled on February 12 that those statements cannot be used as evidence against Ruto and Sang, but it said nothing about their in-court testimony.
The volume of evidence is not the only factor that may lead to Trial Chamber V(a) taking more than four months to make up its mind on the “no case to answer” applications. Two of the judges of Trial Chamber V(a) are hearing other ongoing cases.
Judge Olga Herrera Carbuccia is a judge in the trial of former Ivorian president Laurent Gbagbo and former Ivorian cabinet minister Charles Blé Goudé. That trial began on January 28. This was almost two weeks after Trial Chamber V(a) held a four-day status conference on the “no case to answer” motions. The hearings in the Gbagbo and Blé Goudé trial are scheduled to run until July, with short breaks in late February, May, and June.
Judge Robert Fremr is the presiding judge in the trial of former Congolese general and rebel leader Bosco Ntaganda. That trial opened in September last year. Hearings resumed in January this year and are scheduled to go on until the end of February.
Another reason why it may take the judges longer to reach a decision on the “no case to answer” motions is that they are also expected to make a decision on a separate but related matter. This is on the question of whether Sang should be notified of a possible change in the ways he can be held criminally responsible.
The importance of the application is that currently there is only one way Sang can be found criminally responsible if his trial gets to the verdict stage. In a September 8, 2015 application, the prosecution requested the chamber to notify Sang that this may change to include other ways Sang can be found criminally responsible.
The application is not proposing to change the charges or the facts that were confirmed against Sang by Pre-Trial Chamber II in January 2012. Such a change would require the prosecution to follow a completely different procedure.
The prosecution has filed its application under Rule 55 of the Regulations of the Court. The prosecution has said if the chamber agrees to issue such a notice, it will be arguing that the ways Sang can be held criminally responsible under the Rome Statute’s Article 25(3) should include clauses (b) and (c).
Currently Sang’s individual criminal responsibility is pegged to only Article 25(3)(d). Under this provision, an individual is held criminally responsible and liable for punishment if they contributed to the commission or attempted commission of a crime by a group of persons acting with a common purpose.
The prosecution wants two other clauses added to the grounds Sang can be held criminally responsible. One, Article 25(3)(b), relates to ordering, soliciting, or inducing the commission of crime. The other, Article 25(3)(c), relates to aiding, abetting, or otherwise assisting in the commission or attempted commission of a crime.
In its application, the prosecution asked the chamber to make a decision on this issue before the “no case to answer” applications are filed. That did not happen. The chamber, however, did listen to oral submissions on whether such a notification should be issued during a status conference held on October 16 last year.
It is not publicly known whether the trial chamber has received further submissions on the issue, but it is possible that parties and participants have confidentially filed submissions on the issue. The question of whether to legally re-characterize Sang’s individual criminal responsibility could have an impact on how long it takes Trial Chamber V(a) to decide on the “no case to answer” submission. It could also have an impact on the trial chamber’s ultimate decision on the “no case to answer” applications.
The prevailing view in Kenya’s domestic criminal courts (and also in the UK) is that if courts decide that an accused has “a case to answer” then at this stage the ruling should not be long or even disclose its reasons.
On the negative side, an accused person does not learn which part of the prosecution’s case requires defending. Hence the defence are forced to marshal maximum funds to mount a comprehensive defence, since they must assume that each and every aspect of the prosecution case was proved. You can imagine how expensive it can be having to investigate evidence and summon all possible defence witnesses to counter each and every prosecution witness and the entire factual ingredients.
On the positive side, by being brief and simply issuing a one-line ruling, the court saves itself from tying its hands at the interim stage. It simply postpones the detailed consideration of grey areas until after the defence presents their case.
In other words, the court is in no way required to narrow down the prosecution case at this stage so that the defence are alerted about what strikes the judges or magistrates as incriminating. Rather the precedents show that appeal courts strongly discourage trial courts from writing extensive “no case to answer” rulings, if they intend to put accused persons on their defence. Believe it or not, good practice allows a criminal court to leave room to be able to base a “case to answer” decision on one ground, and yet subsequently convict on a totally different ground!
Therefore, assuming that the ICC practice regarding not hinting the court’s interim mind-set is similar to that of Kenyan (and I believe UK) domestic courts, I would not read too much into the amount of time taken to write a “no case” ruling. Courts often take a long time to consider the evidence and submissions, only to render the standard one-line ruling: “The prosecution has made out a ‘prima facie’ case which merits that the accused be placed on their defence.” Period. No background, no issues, no analysis of evidence or arguments, no authorities, only a bare conclusion and recommendation. Neither would accuseds be advised to appeal on account of such brevity. Appeal Chambers direct that that is as it should be.
In short, I am not entirely convinced that the Ruto/Sang Trial Chamber (V) should necessarily write a long ruling. Although they must surely spend adequate time reflecting on the subject matter before them.
Instead, I would suggest that it is only if the judges intend to acquit and discharge the accuseds at this stage, (on all counts) then they must do so authoritatively not only to enable the accused to indeed benefit from the doubts which the court found in the prosecution case, but also to enable the prosecutor to appeal if need be.
However, I oftentimes wonder whether indeed they actually read the submissions since the easy escape is simply to say “case to answer” let’s hear what the defence has to say. That nonchalant way of responding to the “no case submissions” has always struck me as the most disappointing section of the Criminal Procedure Code, given the anxiety it can put the accused persons through. Moreso, in an international case against a public leader.
Additionally, much ado was made during counsel’s submissions about whether the evidence should be subjected to a quantitative or qualitative standard. And whether it should be taken at its highest. What I might contribute is that the Kenyan (and UK test see “R v Galbraith,” 1981) for a no case finding is that no reasonable court, property directed could possibly convict on the facts. In other words, provided that a conviction is possible, then there exists no basis to dismiss at “half-time”.
Lastly, like you point out, there are aspects of the trial and submissions which were conducted in closed session. Hence I am unable to hazard an opinion about the expected outcome. I might entertain you with a couple of observations. One, I suspect that the judges are unlikely to be terribly impressed with the argument that OOOH even Donald Trump has said that he would not let Muslims into the US or that Latino Americans should get out etc. Hence Sang’s allegedly hateful broadcasts were acceptable. The converse is the case. One cannot argue that there are others who were violating the law at the time as a defence to a criminal charge. Hence I was at pains to follow the reasoning which tried to “contextualize” the broadcasts which stated that everyone was doing announcing that a certain tribe would be flushed out of the rift Valley and since sang only joined in belatedly, therefore that in itself must result in exoneration. It sounded more like an admission.
As for the DP his goose seems to have become uncooked mostly on account of statement retractions and absentee witnesses coupled with the non-retroactivity of Rule 68 admitting such absentee witness statements. It would require an enormous feat of deconstructionism for the judges to rely on the initial statements which have been retracted by hostile witnesses, as representing the truth and rejecting the recantations as being coerced or bribed. Evidence of such intimidation should not be speculated simply because the DP wields executive power. The prosecution concedes that there is no evidence that the accused actually interfered. He therefore is entitled to the benefit of the doubt as to whether initial prosecutor Luis Ocampo conducted shoddy investigations and/or bribed NGOs etc. etc.
There Is No Any Evidence In Ruto,sang Case It Was Just Politics Being Played To Lock Out Some People To Clinch That Highest Office Because Of Their Political Stand Just To Punish Them.
We should also not jump to conclusions until the next face is over. For sure, we are unable to comment until the defence has been heard.
whether international or home….the ONLY true justice comes from God
We already know the decision on this. There is a case to answer for Hon Ruto and Sang. It is a decision of the majority with Judge Olga C appending a dissenting opinion. ICC is not a court of justice, it is a kangaroo court.
no case to answer btwn mr ruto and sang,as kenyans we are waiting eargerly for the end of the case
I c c we has Kenyan we want to see how you are ruling .don’t rull like kenyan coat .we want the trueth. Sudan is watching you the way you are ruling Kenyan Case
I like the very intelligent and objective analysis by Charles A. Khamalla. I worry that judges may want to take the easy route of putting the two Kenyans on their defense. But I am also encouraged that especially for Ruto, there is not evidence to sustain case at this point. Let’s wait and see, and pray!
let’s not rush 4 answers of yes or no,God is only the judge.