Deputy President William Ruto, Joshua arap Sang to appeal against ICC decision

The defence teams of Deputy President William Ruto and journalist Joshua arap Sang are seeking to appeal a decision in which ICC prosecutor Fatou Bensouda was allowed to use prior statements of five witnesses who recanted their evidence.

In separate applications filed yesterday, the two legal teams, led by Karim Khan for Ruto and Katwa Kigen for Sang, argued that Trial Chamber V (a) judges erred in interpreting the amendment to Rule 68 of the Rules of Procedure and Evidence.

Last week, judges Olga Herrera Carbuccia and Robert Fremr issued the majority decision in which they said that Rule 68 of the court’s Rules of Procedure and Evidence was the correct provision to use to determine the merits of the prosecution’s application.

Yesterday, Khan’s team outlined 11 grounds for objection which include applicability and interpretation of Rule 68 in ongoing cases as well as the reliability of prior recorded statements of the five witnesses.

The defence teams say the judges erred by not taking into account or giving appropriate weight to other non-formal factors which were present and affected the prior testimonies and which should have been highly relevant to their discretion.

Khan’s team also argues that the judges’ rejected the preliminary legal arguments that prohibit the application of amended Rule 68 in the on-going trial of Ruto and Sang and the timing of its adoption.

The team says by allowing use of prior statements of witnesses who had recanted, it will affect fair trial and also infringe on the rights of the accused persons.

Statutory right

“While the majority observes that materials have not been the subject of cross-examination, no consideration is given to the fact Mr Ruto’s statutory right to confront has been detrimentally affected by the admission of such untested material,” Khan states in the papers in which he has asked for leave to appeal.

He also wants the court to make a finding whether the judges erred in law by finding that amended Rule 68 does not fall under Article 24(2) of the Statute because the principle of non-retroactivity is more applicable to matters of substance than to those of procedure.

In their applications, Khan and Kigen also question the judges’ finding that the witnesses who failed to testify were subjected to interference and whether their failure to give evidence was materially influenced.

“Nowhere did the majority address the contentions raised by the defence in its brief such as to why the prosecution included only witnesses who had withdrawn on the basis of alleged interference and not others in obtaining its evidence,” Kigen argues.

When the amendment to Rule 68 was adopted in 2013, Kenya and other African States were told that it would not be applied retrospectively.

On Tuesday, Attorney General Githu Muigai said the Government seeks to be enjoined in an appeal challenging use of evidence of prior statements in the Ruto and Sang cases.

The AG said the Trial Chamber V (a) botched a promise made to Africa that an amendment to Rule 68 of Rules of Procedure and Evidence would not be applied retrospectively.

In November, 2013, a Kenyan delegation of top government officials including the Attorney General, Director of Public Prosecutions and Foreign Affairs CS put up spirited efforts to block passage of the procedural rule which would allow prior recorded statements to be used in court.