ICC judge warns DP William Ruto and Joshua Sang on calling witnesses in their case

The double-edged nature of the ‘no case to answer’ motion dawned yesterday at the International Criminal Court after the presiding judge cautioned Deputy President William Ruto’s lawyers on their approach.

At the beginning of a status conference, Presiding Judge Chile Eboe-Osuji told William Ruto and his co-accused Joshua Sang to weigh carefully the implications of calling witnesses in the case, as it could be the thread on which their fate will hang. "If the defence have not thought about it, they can take their time and think about it..." the judge said.

The judge gave defence a grace period of two days to re-consider their approach to the case, arguing that apart from the risk of the evidence by witnesses being used against the accused, it will also lower the burden of proof on the part of the prosecution.

*Joshua Sang (centre) and his defence team at The Hague yesterday. Sang and Deputy President William Ruto will seek to convince the ICC judges that Prosecutor Fatou Bensouda has no case against them.* (PHOTO: COURTESY)

"In light of written submissions of the defence urging the chamber to assess the evidence at this time, at the level of standard of proof of beyond reasonable doubt, the inquiry is to whether the defence are then prepared to elect to stand upon their submissions and call no forth evidence in the case, notwithstanding that the chamber may not sustain their no case to answer submissions," said the judge.

In its submissions, the defence had urged the court to consider the 'no case to answer' motion on the standard of beyond reasonable doubt, which means the prosecution had an uphill task of proving that the accused should be put on their defence.

But according to the judges, such a standard would require the defence to rely on its written and oral submissions as the final platform without having to call witnesses at a later stage.

"Counsel may see little forensic value in calling extra or any evidence at all if they have made well-founded arguments on their no case to answer motion, since any evidence they call may be used against them. It is for this reason that the defence may see no difficulty in standing by their submissions and choosing to call little or no evidence," the judge said.

A no case to answer motion is a fairly new concept in international criminal justice law.

The judge also warned the defence against engaging the chamber on a 'fishing expedition' in disguise of filing the motion without disclosing the matter of witnesses.

"Barring a fishing expedition aimed at merely ascertaining what the judges think of the prosecution case at half time, a well-founded motion of no case to answer when made by experienced counsel in good faith for its own purposes may have even a stronger value as submissions for acquittal in any event," the judge noted.

"We are not requesting the defence to elect to stand on their no case to answer submissions as a pre-condition for the court to consider their submissions. We are only inquiring of them if it is an election they may consider because it has an effect on the proceedings going forward," the court said.

In their written submissions, the two defence teams did not indicate if they intend to call witnesses, prompting the judge to direct that such an indication must be made before the close of the proceedings this week.

By the judge's words, the court had placed the Ruto defence team in a dilemma. Should they elect to call witnesses, the ruling on the no case to answer motion will be judged on a lower threshold of prima facie, which means that the court will have to make a decision based on whether there is sufficient reason to believe that the trial could end in a conviction.