NAIROBI, KENYA: Lawyers representing Deputy President William Ruto and former broadcaster Joshua arap Sang at the International Criminal Court (ICC) are working on a legal strategy which may lead to their cases being decided before the end of the year.
The two are weighing the option of filing a “no-case-to-answer motion” which would compel the judges to determine the separate acquittal motions on the two respective cases. The no-case-to-answer motion is an ICC parlance also known as judgment of acquittal, motion for directed verdict of acquittal, motion for non-suit and half-time motion in other jurisdictions.
The motion can, however, only be filed once ICC Prosecutor Fatou Bensouda has concluded her evidence against the duo. The sum effect of the motion, once moved, would be to require the judges to render a full or partial judgment of acquittal.
The judges trying the pair for crimes against humanity have already approved the use of this approach with a caution that it should not be employed for speculative purposes. They have also issued directions on how it is to be applied.
“For us, it’s almost automatic. We cannot let it go. On the basis of the evidence adduced thus far, we have formed a strong belief that prosecution has not made a prima facie case against our client. It is on the basis of this belief that we will be filing a no-case-to-answer motion at the earliest opportunity,” Sang’s lawyer Kimutai Bosek, told The Standard on Sunday.
Bosek said he “strongly suspects” Ruto’s defence would make a similar application.
Contacted for comment, Ruto’s lead lawyer Karim Khan confirmed to The Standard on Sunday that a no-case-to-answer motion is very much on the cards. “I normally like to look at all options. I keep them open. I’d rather we talk about it when we get there. Unfortunately that is all I can say for now,” Khan said.
Both legal teams supported the idea of the motion when judges invited them to express their views earlier in the year. The principle behind the motion is that an accused should not be called to answer for charges when evidence adduced thus far is substantively insufficient to warrant the need for an accused to mount a defence.
According to the Rome Statute, accused persons have certain rights, among them presumption of innocence, right to fair trial and right to a speedy trial. These rights further justify the no-case-to-answer motions. Ruto and Sang are both facing three identical charges of crimes against humanity — murder, deportation or forcible transfer of populations and persecution. Ruto is charged under “indirect co-perpetrator” mode of criminal liability while Sang is charged under “having otherwise contributed” mode.
If and when judges consider the “half-time motion”, they will consider each charge separately. They will also consider if the evidence adduced qualifies the two modes of criminal liability under which the two are charged. Ruto will however have to work harder to terminate his case.
While issuing directions on filing of the motion, the judges said Ruto’s case would be unique because there is a pending notice to change his mode of liability to include three others. Apart from the “indirect co-perpetrator” mode under Article 25(3) (a), Bensouda has said Ruto’s criminal responsibility may change to include Article 25(3), (b), (c) or (d).
The latter three say a person shall be held criminally responsible if they order, solicit or induce others to commit an ICC crime or if they facilitate the commission of such a crime. Also, if they “in any other way contribute to the commission or attempted commission” of an ICC crime.
The judges said they would only need to be satisfied that one of these four modes of liability is adequately sustained by Prosecution evidence for Ruto to lose the no-case-to-answer motion. Conversely, Ruto would have to disapprove all the four modes to win the motion and his possible acquittal.
According to lawyer Evans Monari, a no-case-to-answer motion is quite a gamble. It must only be made if one is sure that it will fetch the desired results — acquit the accused of one or all the charges. “If you lose such a motion, you expose the defence to serious attacks although you would be required to go on with your defence. If you win it, then that’s the end of the matter,” he said.
Monari says a no-case-to-answer motion is a good idea because the court need not waste more time on cases clutching on straws. Bensouda has more or less exhausted her witnesses. She has called 21 witnesses out of the list of 40 she intended to at the start of the trial. She has had to drop many while others have disappeared from her radar in the course of time.
She is now counting on eight more reluctant witnesses who must however be compelled to testify. Sources told The Standard on Sunday that the eight could testify from September 1 via video-link from Kenya. The Kenyan Government must however use its powers to compel them to do so.
Assuming all the eight witnesses take three days each to testify, the prosecution will run out of witnesses by end of September.
If the defence teams file the no-case-to-answer motions by early October, judges may take one or two months to determine the motions. If the motions succeed and the judges knock out the three charges facing the accused, the pair may get their 2014 Christmas present from The Hague.
“No case for the defendant to answer is a procedure linked to adversarial criminal justice systems. According to that procedure, defence counsel may, at the close of the case for the Prosecution (which has not been announced at this stage), request the court to acquit the accused, without requiring the defence to present their own case. When such a motion is made, it is then for the court to decide whether or not the challenge has merit,” ICC spokesman Fadi Abdalla explained.
He said in the event Ruto or Sang intend to file the no-case-to-answer motions, they will have to notify the chamber of their intention orally no later than the last day of the prosecution’s case or completion of the presentation of any evidence by the legal representative of victims.
This, he said, is in accordance to directions issued by the judges on the conduct of the trial on June 3. After the oral notification, the accused would be required to make their written filings on the same within 14 days. In the June 3 decision, the judges asked Ruto and Sang to “carefully consider whether or not a no-case-to-answer motion is warranted in the circumstances”. They said they should not base their arguments on credibility issues which have dogged the cases in their life at the ICC.
Abdalla also cautions that the June 3 decision was a procedural decision by which judges provided guidance regarding the legal basis for allowing no case-to-answer motions. “As stressed by the Chamber, the decision to allow, in principle, no-case-to-answer motions is not intended to in any way pre-judge whether or not a motion of that kind should actually be pursued in this case,” he said.
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