DP William Ruto’s ICC case premised on hearsay

Professor Adrian Keane, in his 9th Edition of the Modern Law of Evidence, defines hearsay in the reverse as ‘any assertion made by a person other than by one who gives oral evidence in the proceedings if tendered as evidence of the facts asserted’.

In other words, any testimony given by a witness concerning words spoken, statements made or documents generated by a person who is not produced in court as a witness if the testimony is presented to prove the truth of the facts which they assert.

What is the rule?

Generally and from time immemorial, hearsay presentations are not admitted for purposes of consideration by courts.

Admission of evidence is allowing it for consideration by the jury or the court in order to make a factual determination.

The reason is simple. It is difficult to put weight on evidence of a person that has not been seen in court, his reliability tested on the fires of cross-examination and has not taken oath.

If anybody doubted the importance of oaths, Justice Chile Eboe Osuji’s ‘dissenting concurrence’ judgement put that beyond debate.

The rules for admitting hearsay evidence for purposes of determining facts is where issues really matter. It is borne of the appreciation that the witnesses cannot always appear in court for one reason or the other.

The classic example is what was popularly referred to as ‘dying declaration’.

When a person before he/she actually dies, for example, states that he was stabbed fatally by another, that is usually admitted to form part of evidence as long as it is corroborated by other primary evidence and is part of the res gestae.

In the case of Ruto/Sang, the prosecutor closed her case and she has no opportunity to present corroborating evidence and hence, it looks like those who have started dancing in celebration had better stop, for it may be in vain.

The exception to hearsay is what is now holding together the prosecutor’s ICC case against the Deputy President.

Rule 68 of the ICC Rules of Procedure and Evidence of the ICC legislates for instances where the court may ‘allow the introduction of previously recorded testimony of a witness’.

The court therefore went on to allow ‘statements’ of the witnesses who had changed their minds or withdrawn all together to be admitted as evidence under the said rule ‘in the interest of justice’ and this is quite intriguing for sober legal minds.

According to the court, as long as it is prima facie evidence, it should be admitted and the caution that it is unsworn and untested by cross-examination be considered at the point when the defence presents a motion of no case to answer.

This is a safety valve for those in the dock and we cannot discuss beyond here as we hold no brief on this forum for the parties concerned. The jury is out there and it is only fair to allow the due process in the case facing the two Kenyans as it appears that when they take the next corner, they could be vindicated.

The European Court of Human Rights at Strasbourg has considered this point in view of an Article entitling an accused person ‘fair hearing’ for a while.  Its views seem a little divergent from the ICC decision in this particular case.

That court has said it time and again; that where the unavailable witnesses are the ones providing the ‘determinative’ or ‘sole’ evidence, that evidence cannot be admitted. In other words, the same caution for admitting all other hearsay evidence applies.

The Judges in the present case, when granting leave to appeal, have stated that the hearsay evidence admitted under Rule 68 may have a significant impact on the outcome of trial.

At no time did the judge determine the evidence for contemporaneous and part of the res gestae but instead it hoped to establish precedents based on the evidence being ‘prima facie’.

We think that the ICC court of first instance should have approached this subject differently. The Appeal chamber, we hope, will come in to reconcile the law around this point with the global trends on this subject before the motion of no case to answer is prosecuted.