AU opposes Rule 68 on recanted testimony in the Williiam Ruto and Joshua Sang ICC case

Deputy President William Ruto speaks during Mashujaa Day celebrations at Nyayo National Stadium in Nairobi yesterday. AU says amended Rule 68 should not apply in his ICC case. (PHOTO: BONIFACE OKENDO/STANDARD)
The African Union (AU) has opposed the application of Rule 68 that International Criminal Court (ICC) Prosecutor Fatou Bensouda used to convince judges to accept recanted witness testimonies against Deputy President William Ruto and journalist Joshua arap Sang.

The AU argues that negotiations and declarations at the 12th Session of the Assembly of State Parties (ASP) indicate that the amended Rule 68 that allows admission of prior recorded testimony was not intended to apply retroactively in the cases of DP Ruto and Sang.

In opposing the use of Rule 68 against Ruto and Sang, the AU further argues that the most salient explanation of the rationale for the concerned amendment stems from the Working Group on Lessons Learnt (WGLL), whose draft of new Rule 68 was eventually adopted by the ASP.

“The WGLL explains that the overall purpose of the proposed amendment was to reduce the length of ICC proceedings and to streamline evidence presentation given the relative rarity with which the original, more restrictive Rule 68, had been applied in ICC practice. To achieve that goal, the WGLL suggested expanding Rule 68 to include three additional instances in which prior recorded testimony may be introduced in the absence of the witness,” the AU says.

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On October 5, the African Union Commission (AUC), represented by Prof Charles Chernor Jalloh, sought leave to make submissions as a friend of the court opposing the use of Rule 68 of the Rules of Procedure and Evidence against the ongoing cases of DP Ruto and Sang.

“The prosecutor sought to introduce statements written by personnel from her office and subsequently adopted by witnesses. Some of these witnesses appeared before the Trial Chamber to offer testimony subject to cross-examination by the defence.

Changed testimony

“In so doing, two important ICC principles were promoted, namely that of orality and that of an accused’s right to confront witnesses against them. The prosecution was dissatisfied with the in-court testimony, arguing that the witnesses changed their testimony in material respects since their OTP interviews,” The AU says in its appeal to the Appeals Chamber.

The AU has told the Appeals Chamber that the request was based on an unprecedented decision of the African Union Assembly of Heads of State and Government directing the AUC to seek to join the ongoing proceedings against DP Ruto and Sang.

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The AU told appeal judges Piotr Hofma?ski, Silvia Fernández de Gurmendi, Christine Van den Wyngaert, Howard Morrison and Péter Kovács that the 12th Session of the Assembly of States Parties (ASP) in November 2013 that amended Rule 68 agreed that it cannot apply to Ruto and Sang’s cases as such a move could violate several fundamental provisions of the ICC Statutes.

The Chamber granted the AUC leave to submit observations on October 12 and the AU now says the decision to allow use of recanted evidence offers a precedent for a new type of AU-ICC dialogue.

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ICCDP William RutoJoshua Sang