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.