Appeals Chamber ruling sets stage for collapse of Ruto's ICC case

Deputy President William Ruto (left) with Joshua arap Sang at the ICC

Deputy President William Ruto yesterday edged closer to untangling himself from shackles of the International Criminal Court (ICC).

The appeals chamber of the court, the highest authority in the hierarchy of the ICC, overturned an earlier decision of the trial chamber allowing use of prior-recorded testimony in the case.

The decision made on August 19, last year, by Trial Judges Chile Eboe-Osuji, Robert Fremr and Olga Herrera Carbuccia had caused immense anguish to Ruto and his co-accused Joshua arap Sang.

Observers said the decision presented the greatest chances that the DP would be convicted for crimes against humanity committed in Kenya during the 2007/2008 post-election upheavals. The prior recorded testimony was obtained from five witnesses.

“In the present case, for the reasons set out above, it is appropriate to reverse the Impugned Decision to the extent that prior recorded testimony was admitted under amended Rule 68 of the Rules for the truth of its contents,” the judgment read by presiding judge Piotr Hofma?ski said.

In their unanimous decision, the five appeal judges – Hofma?ski, Silvia Fernández de Gurmendi, Christine Van den Wyngaert, Howard Morrison and Péter Kovács – said the trial chamber decision resulted in admission of evidence, not previously admissible in that form under former Rule 68.

They said this negatively affected the overall position of the accused to defend themselves.

The judges faulted the trial chamber’s finding that the use of the rule was not detrimental to Ruto and Sang because it was not taking away any right due to them prior to the amendment. They said the trial judges were interpreting the term “detriment” rather too narrowly.

Interpreted broadly

“On that basis, the Appeals Chamber considers that the term ‘detriment’ should be interpreted broadly and not be limited to prejudice to the rights of the person who is being prosecuted,” they said.

They also dismissed Chief Prosecutor Fatou Bensouda’s alternative application to admit the evidence through Article 69 of the Statute in the event of disqualifying use of Rule 68.

The judges however dismissed Ruto and Sang’s contention that the amendment of Rule 68 was effected with an undertaking that it would not apply in their cases. They said “neither the text of amended nor texts of drafting history make any reference to the Rule not applying on specific cases”.

“No specific evidence has been produced to support the assertion that, during the negotiations leading to the adoption of amended Rule 68 of the Rules, an explicit undertaking was given by court officials to the effect that the amended rule would not apply to the pending Kenyan cases before the Court,” they said.

The evidence of the five witnesses lends credence to prosecution claims that Ruto was at the apex of a “network” that allegedly coordinated attacks in Rift Valley in 2007/2008.

Yesterday, lawyer Nick Kaufman who practises at the ICC and is a former prosecutor at the International Criminal Trial for the former Yugoslavia, said Ms Bensouda may have to call off her case as a result of the decision.

“Even Bensouda has acknowledged that she will be facing considerable difficulties in bringing home a conviction without the prior recorded testimonies. As a result she will be considering the viability of continuing her prosecution of Ruto and Sang,” he told The Standard on Saturday.

The five were among a group of “recalcitrant seven” witnesses whom the prosecutor dragged into the courtroom in 2014 after they refused to voluntarily appear to support their earlier claims.

The testimonies of four of them were admitted through Rule 68 (2) (d) which allows introduction of evidence of witnesses who have been subjected to interference. Although they testified, they failed to give evidence central in their prior recorded testimony.

The fifth witness was admitted through Rule 68 (2) (c) which allows for introduction of testimony of persons who has “subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally”.

“The Chamber notes the element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings. The Chamber will not allow such hindrance and will safeguard the integrity of the proceedings,” said the trial judges last year while admitting their evidence.

According to the import of Bensouda’s applications in the past, the case against Ruto would more or less collapse if the evidence of the six was disallowed.

“They gave statements variously describing pre-election meetings they attended — some at Ruto’s home — wherein post-election violence was planned and participants, including Ruto, distributed money and weapons, broadcasts on Sang’s radio station in which Sang incited violence, and acts of violence during the PEV itself,” Bensouda said in a December 5, 2013, application seeking the court’s help to compel them to appear.

According to the judges of the trial chamber who evaluated their testimony, they repudiated almost to last word the incriminating evidence they had initially provided.

The first witness had testified about several planning meetings in his prior recorded statement. But when he testified, he disavowed “almost every previous statement relating to the accused”. He disavowed attending several crucial meetings, seeing and witnessing certain aspects of prosecution claims against Ruto.

The prosecution gave evidence showing that the witness may have been induced into changing course. Bensouda even tabled a written statement on money transactions and transcript of conversation between the people involved in the alleged scheme to induce the witness.

The witness admitted to having financial difficulties and discontinuing co-operation with the prosecution. He also testified about threats allegedly made against his relatives which forced them to report to police.

The second witness testified to Ruto’s political supremacy in the Rift Valley region and his political action on the election day. He however went on to recant “fundamental aspects” of the prior recorded evidence relating to Ruto’s attendance in several alleged meetings, pre-election scheme to perpetrate violence among others.

His evidence also diverged to an extensive degree with the evidence originally provided to the prosecution. Again, the judges were satisfied that the witness was the subject of improper interference and that this interference materially influenced the evidence provided.

Alleged meetings

The third witness’s prior recorded statement was on alleged meetings where violence was planned or executed. The witness, like the rest, recanted all evidence saying he was induced by offers to live abroad.

The fourth witness’s prior recorded evidence centred on particular matter of Ruto’s alleged crimes. The last witness whose prior recorded testimony was accepted had disappeared from both the prosecution and the Kenyan authorities.

His statements had never been tendered or admitted by the court in the case before Wednesday.

With the decision now reversed, evidence of all the witnesses goes down the drain.

Sang’s lawyer Katwa Kigen was over the moon, saying the judgment enhances prospects for winning the no case to answer motion.

“It’s an excellent decision. It has restored our faith and hope in justice. I am happy. My client is equally happy and thankful to God. I believe with this judgment on our side, the no case to answer motion is as good as won,” he said.