The ICC Appeals Chamber’s decision quashing use of recanted evidence in the case against Deputy President William Ruto may have improved his chance of winning the acquittal motion.
Observers and participants in the case say Friday’s decision removed a significant plank of the body of evidence to be considered when determining whether the DP and his co-accused Joshua arap Sang have a case to answer.
Indeed, Rule 68 materials – as the evidence quashed by appeal judges had come to be known in court slang – was among the factors singled out as weighing heavily on the accused’s prospects of winning the acquittal motion.
“It has certainly enhanced our chances on our pending motion of acquittal. It could not have come at a better time. This has been our argument all along, that the case cannot stand on its fours,” Katwa Kigen who represents Sang, said.
His counterpart Karim Khan who represents Ruto was similarly expectant of better prospects in the acquittal motion. “The appeals chamber deserves great credit for unanimously clarifying the law on an important issue before the court. Justice and the rule of law have prevailed. We look forward to the trial chamber’s determination of the defence application for a judgment of acquittal which is before it. We are confident that all relevant matters will be equally considered by the trial chamber,” Khan said.
Lawyer Nick Kaufman however feels the appeals judges did not consider an important matter which has characterised the case and which could weigh heavily on trial chamber’s determination of the pending motion. “The Appeals Chamber did not really address the question of whether or not witness interference had occurred confining its judgment to the issue of retroactivity. The prosecution has already argued in its submissions on no case to answer that the Trial Chamber has found that witness interference was systematic”.
“The prosecution has further submitted that this finding should be a relevant consideration in examining the totality of its evidence which it believes has met the low standard required to oblige Ruto to present a defence,” Kaufman, a former prosecutor at International Criminal Tribunal for the former Yugoslavia says.
The same matter is amplified by Stella Ndirangu, a programmes manager at the International Commission of Jurists (ICJ-Kenya) and Human Right’s Watch’s Liz Evenson.
“The fact that the trial chamber especially Judge Osuji had gone a great length to analyse how a scheme of intimidation existed is significant. This will of course not be wiped off their minds just because of the appeal decision. They may not write about it in their decision but I think they will consider it,” Ndirangu said.
Bribery of witnesses
According to Evenson, a senior international justice counsel at Human Rights Watch, it is still not very clear how Friday’s decision will impact on the prosecution case and pending applications. She was however categorical on one thing: “The decision should not obscure the bribery of witnesses that prompted the use of Rule 68 in the first place.”
In totality of things, however, Kaufman says the real question now ought to be whether it is appropriate for the prosecutor to continue her prosecution if she now believes she cannot satisfy the burden required at the conclusion of a trial; namely beyond a reasonable doubt.
“A prosecutor should never adopt the attitude of sitting back and letting the court decide. If a prosecutor is not convinced that he or she can bring home a conviction beyond a reasonable doubt at the end of the trial, it would be inappropriate for him to hope that a suspect will impale himself in the course of presenting his own case. A prosecutor is not tasked with pursuing victories at all costs but with upholding due process in order to establish the truth.”
Lawyer Kipchumba Murkomen says Friday’s decision is a sign of things to come. He says victory is in the offing for Ruto and Sang and the question is when, not if.
“We are not expecting any other result other than victory for the two in the no case to answer motion. We are more than confident that the case has come to an end. It cannot get clearer than this,” Murkomen, the Elgeyo Marakwet Senator and Senate Deputy Majority Leader told The Standard on Sunday.
Other than Rule 68 materials, other factors which will count in the no case to answer decision include the question of necessity of “organisational policy” in proving crimes against humanity and criteria for accepting the prosecution evidence in relation to defence’s and the standard of proof adopted among others.
Kaufman however introduces another angle to the whole matter. He says one of the most intriguing aspects of Friday’s appeal judgment was its reference to the potential use of Article 69(3) of the Rome Statute.
The Article permits a trial chamber to receive all evidence necessary for ascertaining the truth. The Prosecution never relied on this Article, presumably, because it would have contradicted its claim that Rule 68 was not being applied retroactively.
“Now that we are in the situation of assessing Ruto’s case as if the r68 amendment never existed - the Prosecution might very well apply for the use of art 69(3) in the present instance,” he said.
He added: “Whether this would be viewed as cherry-picking the positive aspects of the Rule 68 framework and discarding the duff remains to be seen. It is not clear whether Ruto is out of the woods just yet or whether the Appeals judgment will come back to haunt him.”
“At the end of the day, the ball is now firmly in the prosecutor’s court and the first person to be knocking on her door come Monday morning will most likely be Karim Khan himself.”