International Justice Monitor

A project of the Open Society Justice Initiative

ICC Terminates the Case against Ruto and Sang

Trial judges of the International Criminal Court (ICC) have terminated the case against Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Trial Chamber V(a) decided to vacate the charges against Ruto and Sang in a 2-1 decision, said Jelena Vukasinovic, the ICC Chief of Office in Kenya. Vukasinovic was speaking at a news conference in Nairobi.

Wilfred Nderitu, the lawyer for victims, said that the victims will respect the decision.

“There is no doubt that it would come as a disappointment to the victims,” Nderitu said at the same news conference addressed by Vukasinovic. “I can say that I spoke [to the victims], and many of them had expected that this case would proceed to the defense case.”

The public redacted decision is available on the court’s website, and a YouTube video has been posted with a statement from Spokesperson Fadi El Abdallah. The text of that statement is below.

Today, 5 April 2016, Trial Chamber V(A) of the International Criminal Court (“ICC” or “Court”) decided, by majority, Judge Olga Herrera Carbuccia dissenting, that the case against William Samoei Ruto and Joshua Arap Sang is to be terminated. According to the majority, this decision does not preclude new prosecution in the future either at the ICC or in a national jurisdiction. This decision may be subject to appeal.

The Chamber considered the requests of Mr Ruto and Mr Sang that the Chamber find that there is ‘no case to answer’, dismiss the charges against both accused and enter a judgment of acquittal. The Chamber also considered the opposing submissions of the Prosecutor and the Legal Representative of the Victims, and received further submissions during hearings held from 12 to 15 January 2016. On the basis of the evidence and arguments submitted to the Chamber, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr, as the majority, agreed that the charges are to be vacated and the accused are to be discharged. They provided separate reasons for this decision.

Judge Fremr found that there is no case for the accused to answer based on an assessment of the Prosecution’s evidence in accordance with the Trial Chamber’s Decision of 3 June 2014, which outlined the principles and procedure for the Defence’s submissions of no case to answer. In his view, the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused. Accordingly, he considered that there is no reason to call the Defence to bring their case or to prolong the proceedings any further.

Judge Eboe-Osuji, concurring with Judge Fremr’s evidential assessment, also vacated the charges and discharged the accused without prejudice to re-prosecution in the future. However, he declared a mistrial in the case, because it cannot be discounted that the weaknesses in the Prosecution case might be explained by the demonstrated incidence of tainting of the trial process by way of witness interference and political meddling that was reasonably likely to intimidate witnesses. In his opinion, Judge Eboe-Osuji also discussed several matters including reparations, immunities and elements of the “crimes against humanity” definition.

The majority of the Chamber, having concluded that the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused, also concluded that a judgment of acquittal was not the right outcome, but only vacation of the charges and discharge of the accused. The majority also agreed that there is no reason to re-characterise the charges.

Judge Herrera Carbuccia appended a dissenting opinion. In her view, the charges against both accused should not be vacated in the present case as such outcome departs from the legal standard established in the Trial Chamber’s Decision of 3 June 2014. Judge Herrera Carbuccia considered that the Prosecution case had not ‘broken down’ and she concluded that there is sufficient evidence upon which, if accepted, a reasonable Trial Chamber could convict the accused.

Background

The trial of William Samoei Ruto and Joshua Arap Sang opened on 10 September 2013. Mr Ruto and Mr Sang were accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in the context of the 2007-2008 post-election violence in Kenya.

Over the course of 157 trial days, the Trial Chamber heard the testimony of 30 witnesses for the Prosecution, including two expert witnesses. During that time, the Chamber admitted into evidence 335 exhibits for the Prosecution, 226 exhibits for the Ruto Defence, and 82 exhibits for the Sang Defence. The Prosecution closed its case on 10 September 2015. At the close of the Prosecution’s case, the evidentiary record contained 92 photographs, 27 maps, 77 items of audio/visual material, and over 8,000 pages worth of documentary evidence. Throughout the trial proceedings, the Trial Chamber rendered over 400 written and oral decisions.

 

6 Comments
  1. Today’s final decision is welcome by the majority of the people of Kenya.

  2. DP William Ruto and former Journalist Joshua Arap Sang are only only been half-relived. They should have been accorded a full de-ritualization process. It seems unfair to have one’s name dragged not merely through the mud, but over the furnace of red-hot coals, in internationally-publicized criminal proceedings only to be told “in absentia” that they no longer need to continue attending court. That anti-climax simply will not do. An accused cannot properly return to their virgin-state upon being discharged with a silent “good-bye for now, but see you later.” No, no, no, no. An international prosecution is akin to a treason case. One cannot be half pregnant. Genocide charges are the most serious known to mankind. There is no room for grey. Either the prosecution is entirely right or absolutely wrong. The mere fact that the three judges seem divided on their verdict, means that the prosecution was completely wrong.

    Having had to answer to crimes against humanity charges in open court, the least that self-respecting judges could do was to orally and emphatically exonerate them and lambast the prosecution in front of them so that they could hear the sweet music of liberty ringing inside their eardrums infront of their very accuser and the whole world which has watched the five year teledrama of uncertainty and suffering.

    As it stands, even tomorrow when the former suspects awake, they might think they are still dreaming. Indeed, the effect of Judge Chile Ebe-Osuji calling it a mis-trial is not merely illegal, but beyond a joke. The experience of any criminal trial, even before a lowly magistrate’s court, is a process worse than death. A suspect is treated like a mere laboratory specimen. The ritual of being spoken at, being referred to as “the accused” and being deprived off the possibility to pretend that they are someone else, is the very deprivation of being deprived off being what it means to be human, an identity. Unlike humans, animals cannot pretend to be someone else. That is what is so demeaning about being and ex-suspect. It is always easier for lazy people to always perceive one negatively.

    Former suspects can never henceforth pretend before their fellow creatures that they are “beyond suspicion.” Instead, one remains haunted by flashbacks of being in the dock. One can easily develop an inferiority complex and start believing that everyone treats them badly because of bias. The judgement should strongly disabuse innocent suspects of any wrongdoing on their part. That is why as a matter of criminal justice policy, no one should ever have to suffer the torturous experience of a trial twice. Not even a so-called “guilty” person should ever be re-tried. Otherwise the entire criminal justice system loses legitimacy. We continue trying everyone until somehow, something sticks.

    In conclusion, I am yet to read any of the split judgements. I am simply commenting on the procedure of delivering an unprecedented uncourageous “no case to answer” decision. I regret the half-hearted manner of their release and convey my heart-felt sympathy to the former suspects for whom it shall forever remain hard to be anonymous in a crowd. They deserve some form of strong cleansing ceremony to displace the perceived negativity which taints their reputations and replace it with acceptance and re-integration into their pre-prosecution positions in society and the world. It is unfair and uncourageous for the ICC trial judges to suggest that 29 witnesses later, copious exhibits and countless submissions and most of all, an opportunity to get-it-right, the cases should have been terminated with an unequivocal acquittal so that the suspects can benefit from the doubt by never having to fear having to defend another round of fictitious charges which may be brought against them in future.

    For the victims, however, we are sorry too. But their lost kin and shattered lives cannot be mended by two wrongs. Kenyans should and must somehow, some day provide reparations, just like the UK provided Mau Mau torture survivors with reparations. While the Nandi seek reparations for displacement from the Abedare Mountains etc.. Otherwise we shall bear collective guilt, if not moral blame, then at least national shame.

    • I completely agree with Charles A. Khamala and as such would only build up on what has been said.
      As a student of International Criminal Justice and Human Rights, I know how thorny this issue is, if not totally incomprehensible collection of principles, laws and politics debilitating International justice. The ICC should be evaluated in the context of myriad of factors playing their roles, some of them are explicit while others are playing behind the scene. Thus, repression of the so-called International crimes are left in the oblivion.

      That said, I would say that doing justice through the ICC caters for striking a balance between less encroachment on individual liberty and doing justice for the victims of atrocities. International communities, if there exists such community at all, also has a stake in the prosecution of the most serious crimes of common concern. In this respect, no single purpose can be achieved at the expense of and with wanton disregard to other equally important concerns. The issue is how to do justice which is not tainted and based on law.

      The corner stones for any criminal proceeding are the principle of presumption of innocence and protection against double jeopardy. This means that the accused benefits from presumption of innocence until found guilty and always avail himself of benefit of doubt, Moreover, conviction can only be possible if there is an evidence which sufficiently proves the guilt of the accused beyond any shadow of doubt.

      Hence, there is no such notion of partial innocence or partial guilt in both domestic and international criminal laws, “there is no partial pregnancy”. To acquit the accused with condition is nothing but spreading terror under the rubric of court judgement. If all those swath of evidences are not good enough to decide the case with precision,then, there wont ever be fair trial within a close reach!

  3. The question before the judges was a simple one, was the evidence against the accused suspects sufficient enough to sustain continue the charges and with the trial or Not?

    If sufficient, they would have simply said the trial goes on…no Drama!

    If Not sufficient, then it is expected that they declare the suspects, no longer suspects for the purpose of this specific trial, and also to declare the trial ended with or without prejudice. The judges declaration is also expected to come with a break down of the elements of the trial in support of their ruling.

    We however, can observe very strange statements by this court:

    1) 2 of 3 judges say the evidence does not support the charges to be able sustain a judgement, while the 3rd judge says the evidence Could support the charges If the evidence was Accepted as sufficient.
    Was their enough evidence or not and what is the majority vote!

    2) There is a presentation by the judges of the view that there was political interference in the period of the trial. Which political influence – by the Assembly of State Partys, by the African Union States, by the Kenyan Government, by the suspects on the case or by other political entities, before the case started or during the trial?? What type of interference are they talking about, tainted witnesses before the trial, during the trial, lack of cooperation by government of Kenya towards the prosecutions case in the course of investigation-before the trial or during the trial, perhaps a lack of good witnesses?
    What exactly interfered with the trial, poor preparation by the prosecution or poor protection of witnesses?! Did the OTP not say it had all the evidence and witnesses ready at pre trial chamber stage and at the start of trial?

    3) The judges also say that an acquittal cannot be granted at this time because, they suspects, there could be more evidence out there somewhere, that if discovered and made available, should allow the OTP to re-try the case. That because of the nature of the crimes committed to the victims, the now – former suspects, should be thrown back into the pond just in case they take the fish bait again.
    What is going on here – is there any evidence produced or indicated during the trial, that would, could or perhaps will show that the suspects are guilty??

    My conclusion:

    1) The ICC chambers proceeded with the Kenyan cases that were ill-prepared and could not consciously say so.
    … But were obligated to go through the motions.

    2) The OTP did not do their jobs in preparation for the Kenyan 6 trials. The rushed charges and charged at suspects, and still do not know what happened in Kenya that lead to the 2008 PEV.
    … But they had to Please – LCA!

    3) Kenya lost: The victims did not get investigated-court justice. The country was subjected to 8years of false trials and are back to the same question, who did it?

    … But after exactly 8years; everyone involved in the trial processes got paid, the victims had their day in court, so-called suspects are freed, and Kenya has moved on peacefully.

  4. when ocampo came to kenya he was always being escorted by then prime minister raila odinga.One incident was when he gave him a cheetah and name it ocampo .You guess the motive behind it.may be politics

  5. We go back and reffer the matter to the Judge of all judges,the Great Jugde himself, for part II of this case, the appeal. God deal with it and avenge the murderers of this evil deed. Do not let them escape justice for what they put people through. Do not let the victims blood to go silent, toment them, take their dear ones, let the calprits stand and helplessly watch your mighty hand at work. You, ooh Lord are the Father of the fatherless, u fight and deffend the ophans and the widows. Let not one single one escape your judgment in Jesus mighty name.

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