ICC rejects use of recanted evidence in Ruto, Sang case

Relief for Deputy President William Ruto and Joshua arap Sang after the International Criminal Court Appeals Chamber rejected the use of recanted testimony in their cases.

Friday 12 February 2016, the Appeals Chamber of the International Criminal Court (ICC) decided unanimously to reverse the decision of ICC Trial Chamber V(A) of 19 August 2015, which granted the Prosecutor’s request for admission of prior recorded testimony into evidence pursuant to amended rule 68 of the Rules of Procedure and Evidence (RPE).

The Appeals Chamber in this appeal was composed of Judge Piotr Hofma?ski (Poland), Judge Silvia Fernández de Gurmendi (Argentina), Judge Christine Van den Wyngaert (Belgium), Judge Howard Morrison (United Kingdom) and Judge Péter Kovács (Hungary). Judge Hofma?ski, who presided over this appeal, read a summary of the judgment in open court.

The Appeals Chamber considered that there was nothing in the drafting history of amended rule 68 of the RPE that revealed an error in the conclusion of the Trial Chamber that the amended rule may apply to this case, subject to a consideration of article 51 (4) of the Rome Statute providing that amendments to the RPE shall not be applied retroactively to the detriment of the accused.

It noted that rule 68 of the RPE was amended by the Assembly of States Parties on 27 November 2013. The Appeals Chamber found that the application of this rule was retroactive as the trial had started on 10 September 2013, before the amendment to the rule, and detrimental in the sense that the disadvantage, loss, damage or harm to the  caused by its application negatively affected the overall position of Mr Sang and Mr Ruto in these proceedings. For these reasons, the Appeals Chamber decided to reverse the decision to the extent that prior recorded testimony had been admitted under amended rule 68 for the truth of its contents.

Court records showed why Prosecutor Fatou Bensouda wanted the testimony to remain in court records, and why defence lawyers wanted the judges to overturn the trial chamber's ruling.

The recanted testimony of the first hostile witness placed the DP at the core of planning meetings ahead of the 2007-2008 post-election violence. Before he disowned the statement, the witness had implicated Ruto in meetings whose agenda included buying weapons to commit the alleged crimes.