In 2013, Kenya secured concessions for its leaders to be absent during trial at the International Criminal Court (ICC) but in exchange gave in to another rule that the prosecution is now using against Deputy President William Ruto.
When Kenya's delegation successfully pushed for the change on Rule 134 to allow for the use of video technology during proceedings, and excusing suspects engaged in extraordinary public duties from attending trial, they also accepted the amended Rule 68 of the Rules and Evidence.
According to Kenya, Rule 134 was vital in enabling President Uhuru Kenyatta and Ruto to be be excused from being physically present at the Hague during trial. And now the ICC prosecution is pinning its hope on Rule 68 of the Rules of Evidence, amended during the 12th session of the Assembly of State Parties (ASP) in the criminal case facing Ruto and radio journalist Joshua Sang.
The rule, passed by consensus after a series of negotiations, allows the ICC to admit into evidence prior statements recorded by witnesses who are not available to testify for one reason or another; deceased or unwilling to testify.
But although the Kenyan delegation was opposed to this rule, it gave in to allow passage of the key amendment pushed by the Kenya government and the African Union.
Chief Prosecutor Fatou Bensouda has applied to be allowed to use Rule 68 to have statements recorded by several witnesses admitted as evidence. About 16 out of 42 witnesses withdrew their prior testimonies and stopped co-operating with the Office of the Prosecutor (OTP). Some recanted their statements, claiming they had been influenced to record them. Others refused to testify, citing threats, intimidation and fear of reprisals.
The Trial Chamber however allowed the OTP to have some of them compelled to testify and a number of them were declared hostile when they disowned their statements in court.
Ruto and Sang are banking on an agreement made during the 2013 negotiations to the effect that the amended rules would not be used retrospectively in the cases already before the ICC. After the session, the Kenya government conceded to Rule 68. "Our view is that this new rule is fraught with difficulties and is a dangerous move that will hurt the rule of law. But a majority of the assembly members were keen to have these changes passed, and so they were," said Foreign Affairs Cabinet Secretary for Foreign Affairs Amina Mohammed who had led the Kenya's delegation.
Ms Mohamed said in an interview that the amendment was made in the spirit of give and take. She however, said although the amendment to Rule 68 had been agreed within the working group, Kenya had managed to force a caveat that the amendment would not be enforced in the current cases. The caveat states that "...amendments to the Rules of Procedure and Evidence shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted..."
Further Article 51(4) of the Rome Statute provides that amendments to the rules "shall not be applied retroactively to the detriment of the accused."
Ruto's defence team was opposed to the amendment in 2013 and still maintains the objection. Led by counsel Karim Khan, the defence now says the rule cannot apply retrospectively, having been passed when the case had already started.
Last week, the Trial Chamber rejected an application by the Government to be allowed to make submissions on the applicability of Rule 68 in the case. Attorney General Githu Muigai had argued that having participated in the 2013 negotiations in the Hague, the Government could help in shedding light on what transpired.
But the trial judges said they found it unnecessary to hear from the Government on the application of the rule. The Prosecution says it's compelled to resort to alternative methods to place before the Chamber the relevant and cogent evidence that the witnesses would have provided. They say the amendment was done after the commencement of the trial but before they sought the admission of the statements, hence the rule could apply. They have however conceded that without those statements being admitted, the evidence against Ruto and Sang would not be sufficient to convict them.
The parties will make oral submissions later this month and the court will deliver a ruling before July 17.