Did contempt motivate latest ICC ruling?

Last month, the majority bench in the trial of Deputy President William Ruto granted the prosecution's application to admit out-of-court statements of recanting and missing witnesses as prior recorded testimony under an amended rule 68 of the rules of evidence and procedure.

The previous rule 68 required that for prior recorded testimony to be introduced in lieu of oral evidence, both the Prosecutor and Defence should have had an opportunity to cross-examine or question the maker. In the alternative, the prosecution had sought admission under a general provision of the law allowing the court to take in any evidence in the interest of justice, Article 69(2) and 69 (4).

The prosecutor based her application on allegations that witnesses had been intimidated and corrupted to recant their testimony for the benefit of the accused. The defence objected to the application, questioning, on the basis of the doctrine of non-retroactivity of laws, the applicability of the amended rule to the Kenyan cases.

The defence further contended that the un-sworn hearsay statements sought to be admitted did not qualify as prior recorded testimony; were testified to by the witnesses on the stand and were recanted because they were false and not due to any interference.

In their ruling, the majority rejected the objections, and, agreeing with the prosecution on all scores, admitted all but one of the statements " for the truth of their contents". In his ruling delivered on the same date, Presiding Judge Chile Eboe-Osuji agreed with the decision of the majority while also agreeing with the objections by the defence.

His ruling summarily dismissed the alternative mode of admission sought by the Prosecution; Articles 69(2) and 69(4); noting that both required admission "in accordance with the Rules of Evidence and Procedure", thus requiring the invoking of rule 68 or other rule. "I am not persuaded that those routes (69(2) and 69(4)) can reasonably by-pass rule 68," he concluded.

On rule 68, Mr Osuji differed with his "highly esteemed colleagues" and opined that rule 68 did not apply "in any of its generations". Noting that rule 68 was intended to make trials simpler and shorter; and that the drafters set strict parameters for the use of rule 68 including by discouraging its use where the evidence would go to proof of acts and omissions of an accused; he ruled that the circumstances of the current case did not warrant application of rule 68.

The learned Judge went further: Quoting the authoritative Black's law dictionary and giving the word "testimony" its ordinary meaning- "evidence (of) a competent witness under oath or affirmation at a trial or in affidavit or deposition", he noted that "none of the out-of-court statements made by the concerned witnesses was made under oath or solemn affirmation in lieu of oath".

He correctly asserted that an oath or affirmation is given before evidence is given, and disagreed with assertions that declarations of truth accompanying witness statements had the effect of a solemn declaration in lieu of oath, saying that to give the declaration the same meaning as an solemn declaration" would be an impermissible adulteration of the meaning of oath or a solemn affirmation in lieu of oath".

"It is for the foregoing reasons that I do not consider any generation of rule 68 as applicable in the present litigation," ruled the learned Judge. At this stage, the application by the prosecutor was, so to speak, without limbs to stand on. And would have been dismissed. However, and in the first act that raises eyebrows, the Judge proceeded to consider admission of the out-of-court statements under Article 69(3) of the Rome Statute. Article 69(3) provides that "the court shall have the authority to request the submission of all evidence it considers necessary for the determination of the truth".

Given the Prosecutor had asked for admission under this route, did the learned Judge consider this route on his own motion? Mr Osuji interprets Article 69(3) of the Rome Statute as allowing the court to "admit necessary evidence in the interest of justice, beyond limitations that may be inherent in the rules of evidence and procedure". He affirms that judges, in admitting evidence, are not constrained by the rules of evidence, equating rules of evidence to technical rules of procedure, which should not tie courts in their pursuit of justice.

To solidify this position, the judge observes that in the power to request evidence in the interest of justice, is implied the power to admit the evidence. But the implied admission, he suggests, does not require admission in "accordance with the rules of evidence and procedure". Mr Osuji dismisses the notion that evidence, once requested, would still have to be admitted in accordance with the rules of evidence.

Mr Osuji thus concludes that he would admit out-of-court statements of recanting and missing witnesses under the provisions of Article 69(3) because of the special and exceptional circumstances in this case. Curiously, he cautions that his ruling should not be used as precedent in future interpretation of rule 69(3).

The special circumstances enumerated by the judges include allegations by both the prosecution and the defence that the witnesses may have been interfered with; high-profile diplomatic efforts to stop the ICC trials; Parliamentary debates and resolutions on the ICC; and campaigns by religious and community leaders pleading with the ICC to stop the trials.

In his words: "All these actions, coming as they were, in the course of this case, were always fraught with the danger of jointly or severally creating or contributing to an intimidating climate for witnesses. They truly evoke an unbridled form of the very definition of contempt of court".