International Justice Monitor

A project of the Open Society Justice Initiative

Why ICC Judges Did Not Acquit Ruto and Sang

Judges of the International Criminal Court (ICC) have declined to acquit Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang because of interference with prosecution witnesses and attempts to meddle in the case.

In a 2-1 majority decision issued on Tuesday, April 5, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr terminated the case against Ruto and Sang and vacated the three charges of crime against humanity they were on trial for because the prosecution’s case had broken down and the evidence against the two was weak. Judge Olga Herrera Carbuccia dissented.

The judges made their decisions in response to defense applications arguing that Ruto and Sang did not have a case to answer following the conclusion of the prosecution’s case. Judges Eboe-Osuji and Fremr noted that following their conclusion that the prosecution’s case had broken down it would have been logical for them to acquit Ruto and Sang. Ruto’s lawyer had specifically asked for a judgement of acquittal in his application.

Judge Fremr said that he agreed they should not acquit Ruto and Sang because of “the special circumstances of the case.”

“Although it has not been shown, or argued, that the accused were involved in the interference of witnesses, they did profit from the interference, inter alia, by the falling away of several key witnesses that this Chamber found to have been interfered with,” Judge Fremr wrote in his decision to terminate the case.

“Other evidence may have been available to the Prosecution – including evidence that possibly would demonstrate the accused’s innocence of the charges – had it been able to prosecute the case in a different climate, less hostile to the Prosecution, its witnesses, and the Court in general,” Judge Fremr said.

He also said he would have been in favor of an acquittal if the Rome Statue, the ICC’s fundamental law, had provisions for re-prosecution in a case in which someone who has been acquitted but new evidence has become available.

“Noting the overly strict wording of Article 20 of the Statute, which is no longer in line with the contemporary criminal laws of numerous national jurisdictions, I therefore find it appropriate to leave open the opportunity to re-prosecute the accused, should any new evidence that was not available to the Prosecution at the time of the present case, warrant such a course of action,” wrote Judge Fremr, explaining in his decision why he chose to terminate the case rather than acquit Ruto and Sang. The footnote to this paragraph gives as examples legal provisions for re-prosecution in the Criminal Justice Act of England and Wales, the German Code of Criminal Procedure, and the Dutch Code of Criminal Procedure.

Judge Eboe-Osuji agreed with Judge Fremr. He wrote in his decision that “had there been no incidence of interference or political meddling that tainted the process,” and the chamber found that there were “genuine weaknesses in the prosecution case,” then the result, “would ordinarily be an outright pronouncement of judgment of acquittal, with all the legal consequences that may rightly follow such a pronouncement.”

Judges Eboe-Osuji and Fremr, however, disagreed on declaring a mistrial based on their conclusion that there had been witness interference and political meddling in the case against Ruto and Sang. Judge Eboe-Osuji declared a mistrial in his decision, while Fremr declined to do so.

“I generally agree with my esteemed colleague that there was a disturbing level of interference with witnesses, as well as inappropriate attempts at the political level to meddle with the trial and to affect its outcome,” said Judge Fremr.

“Although these circumstances had an effect on the proceedings and appear to have influenced the Prosecution’s ability to produce more (credible) testimonies, I do not consider the impact to have been of such a level so as to render the trial null and void,” concluded Judge Fremr to explain why he did not consider it necessary to declare a mistrial.

Judge Eboe-Osuji said he decided to declare a mistrial by taking into account what he considered to be “serious tainting of the trial process by way of witness interference and political intimidation of witnesses.”

“In this regard, I must make clear that however weak the case for the prosecution is found to be —either at the macro- or the micro-level or both — the incidence of tainting left me with the troubling question whether the Prosecution was allowed the needed room to investigate freely and obtain further and better evidence beyond the ones they obtained and relied upon,” Judge Eboe-Osuji said.

“To put it differently, was the Prosecution’s case weak because there really was no better evidence left to be obtained and tendered without the factor of witness interference and political intimidation?” the judge continued.

“Or was it weak because the Prosecution did the best they could with the only evidence they could eke out amidst difficult circumstances of witness interference and political intimidation? Because of the tainted process, I am unable to say. It is for that reason that I prefer declaration of a mistrial as the right result,” Judge Eboe-Osuji concluded.

In his decision, Judge Fremr gave a witness by witness analysis of how, in his opinion, the prosecution’s case broke down when compared with the details contained the updated document containing the charges. Judge Eboe-Osuji adopted Judge Fremr’s analysis, saying he had nothing to add and addressed other issues in his decision.

11 Comments
  1. does the icc av any law allowing the chamber to take in any evidence in interest of justice, or others were to be accused?

  2. from the onset, the prosecution claimed to have sufficient evidence to secure a conviction. Needless to remind all concerned that the evidence and the witnesses were under the protection of the OTP and the court by extension. I find no merit in the blame on interference and intimidation.

  3. I agree with Judge Robert Fremr for saying that they should not acquit Ruto and Sang because of the ‘special circumstances of the case’- due to issues of interference with prosecution witnesses and attempts to meddle in their own cases.

  4. There is a very important legal maxim called the presumption of innocence and another one called double jeopardy. It is shockingly inappropriate under the first for a judge to say (as these have) “Other evidence may have been available to the Prosecution – including evidence that possibly would demonstrate the accused’s innocence of the charges..” The Accused IS presumed innocent and no evidence needs to “demonstrate” that innocence. Secondly, if the prosecution has failed to state a case and failed to meet its burden of proof, for WHATEVER reason, double jeopardy states that the same accused cannot be tried a second time for the same offence. The ICC is making a muck of things.

    • a mistrial that is declared at the defendant’s behest will not terminate jeopardy or bar reprosecution.

  5. 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 was 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 there sufficient 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?? Is the court saying they feel like the suspects could be culpable but it was not revealed through evidence?? A mistrial usually occurs on technical grounds- what technical grounds do the judges observe in their ruling? Witness tampering was not substantiated during any part of the trial.

    My conclusions:

    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.

  6. over1000kenyans killed themselfes,people burned their homes,just like that?

  7. Ask kivuitu.RIP.some one was cooking figures carelessly said after a narrow victory for pnu

  8. What is right in the eyes of man, is not necessarily right in the eyes of God. We know the trueth. The Kenyan president and his vice should do an honourable thing and compensate the displaced individuals. From the time they have been running to n fro to the Hague, now they can do those individuals justice and return them to their lands or rehouse them elsewhere. Thats their right as Kenyans. We can laugh and redicule the International justice systems, but we may never laugh at human blood shed in those post election violence. Someone/some people will still pay, thats the bitter trueth. Just because a judge said they are free doesn’t mean a thing. In the courts of man, no one will be brought to book, but in the spiritual courts all that stand with the calprits shall all be punished for those crimes. It will happen in the very same land where those atrocities were committed for all to see. There is no escaping that blood, God is the giver of life and only He should take the life back. God bless Kenya and hear the many cries of your people.

  9. I must say Kenyans post election victims suffered. Though they were made to believe that six Kenyans, christened Ocampo Six, were purely responsible for their atrocities. The issue is, and should be blamed on, the prosecution shoddy investigation.
    Prosecution, led by then Ocampo, did not investigate this case properly. He just merely relied on report drafted by political-oriented human activists whom some of the members are elected politicians to various position in Kenya.
    Secondly, the case failed perhaps because procurement of wrong and opportunistic witnesses. Most expected goodies from OTP, as it has been happening in Kenya, but when they realized nothing was forthcoming, key witness recanted their earlier statement.
    PETER KIPROTICH RONO FROM RONGAI NAKURU KENYA

  10. Sad that the judge and team would want to mock our intelligence and co
    ntinue taking us in circles on a matter that has suffered enough fatigue.
    Accept that you’ve been unable to prove Sang and Ruto culpable; acquit these innocents unconditionally.
    Thanks.

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