Discord between two ICC judges who dismissed the case against Deputy President William Ruto and journalist Joshua Sang has thrown the prosecution and victims grappling over the way forward.
The two judges-- Chile Eboe-Osuji and Robert Fremr --disagreed on many issues of consideration in potential appeal or reparation applications. They however agreed that continuation of the case as was “would be a waste of time.”
This concurrence couched as “separate reasons for majority” delivered on Tuesday ended a seven-year period of anxiety for Kenyans, friends and relatives of Ruto and Sang.
In the judgment, Justice Osuji wrote three quarters (198) of the main judgment while Fremr wrote the remaining 55 pages. The dissenting Judge Olga Herrera-Carbuccia wrote 44 pages.
The Chief Prosecutor Fatou Bensouda and Victims lawyer Wilfred Nderitu are still perplexed by the dissonance between the three judges and have been unable to make a move since Tuesday.
“I have taken note of the disagreements. I am however still trying to analyse the decision wholly with view to seeing how to best further the interests of my clients who are the most aggrieved in this matter,” Mr Nderitu told The Standard on Sunday.
On her part, Ms Bensouda announced on Wednesday that she was still studying the decision: “We are currently in the process of carefully assessing the Trial Chamber’s decision to determine the appropriate next steps.”
The two concurred on the weakness of the evidence. Justice Fremr analysed the evidence in detail poking holes to its integrity and reliability: The evidence of the scope of the network used to perpetrate the violence was lacking, Ruto’s position at the top of the network was not supported by the evidence adduced, evidence of central planning, existence of reward system and acquisition of guns was lacking.
Other issues raised by Fremr are exclusive reliance on witnesses to fix Ruto despite the country boasting a “pervasive” media and questionable witnesses who leapfrogged from their original positions.
Osuji wholly bought Fremr reasons for knocking off the case on evidence basis:
“The evidential review laid out in his reasons amply shows that the case for the Prosecution has been apparently weak.”
“To keep the length of my own reasons more manageable, I need conduct no further evidential review. I fully adopt the evidential review set out in Judge Fremr’s reasons.”
That is as far as they agreed. The major point of disagreement between the two judges was the question of the consequences of finding that there was no case to answer due to weak evidence.
The other point was why evidence was weak in the first place. Osuji appeared to blame prosecution’s inability to gather credible evidence and an alleged sustained political campaign against the case.
In choice strong terms, he chided the Kenyan government for creating a climate of fear for witnesses and bullying the court to drop the case:
“Before the commencement of this trial, Kenya was always a State Party to the Rome Statute. They were not known to seek or preach withdrawal from the Rome Statute. Why then the hurry for the sudden drumbeat of withdrawal in the course of the trial? Is it because sacred cows were now on trial and that must not be the case?”
On this basis, he refused to grant an acquittal to Ruto and Sang. Fremr agreed that there was a disturbing level of interference with witnesses, as well as inappropriate attempts at the political level to affect its outcome, but still disagreed with Osuji.
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