It is an established doctrine that a criminal trial anywhere, and in particular in countries where common law prevails, must be heard on the basis of enacted law and rules of evidence as at the time of the alleged offence.
Procedural rules under which the trial takes place may well be changed but evidential rules cannot, indeed must not, be altered to the detriment of an accused.
In the context of the ongoing ICC case against Deputy President William Ruto and Joshua Sang, the chronology of events will unravel legal intricacies.
Out of the six Kenyans initially charged, the cases against Deputy President Ruto and Mr Sang are the only ones remaining and the two having pleaded not guilty on September 10, 2013, the case has been part-heard.
What must be noted is that on November 27, 2013 during the currency of the ongoing ‘trial’, Rule 68 of the International Criminal Court, Rules of Procedure and Evidence was amended by the Assembly of State Parties during its 12th assembly.
The object of the amendment is to allow the prosecution to use previously recorded evidence of a person who is exposed to interference; defined to include improper interference with the physical, psychological, economic or other interests of a person.
On April 29, 2015, Prosecutor Bensouda put in an application premised on Rule 68 of the ICC Rules of Evidence and Procedure asking that the court allow her to use the recorded statements of sixteen witnesses who had recanted their testimony or refused to testify in the case. The application was allowed on August 20, 2015.
The Rule further provided that such testimony could only be used if the person had failed to give testimony and the failure to give testimony had been occasioned by improper interference, reasonable efforts had been made to secure the attendance of the witness, the interest of justice were best served by the prior recorded statement being introduced.
This amendment was necessitated by the setbacks suffered by the prosecution after witnesses withdrew their testimonies in the Kenyan case ultimately leading to charges being dropped against four of the original “Ocampo Six”.
The application of Rule 68 in the case of the Deputy President and Sang was met with fierce resistance by the accused and the Kenyan government.
It was contended that the rule was tailor-made for the Kenyan case and was meant to be enforced retroactively.
Last week it appears Kenya emerged victorious as the Assembly of State Parties agreed to suspend the use of recanted evidence in the case; allowing the use of the recorded statements in this case would have been an affront to justice and the rule of law.
Some arguably feel that the Appeal division of the ICC will have the final say on whether the trial court erred in applying the rule.
The purport of Rule 68 appears to have altered the ICC’s general rules of evidence in order to make conviction for the crimes likelier than it would have been before this rule was amended.
This would not only violate the “equality of arms” necessary in ensuring a fair trial but violate the right to fair trial lock stock and barrel.
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Admission of the documentary recanted evidence takes away the fundamental right to cross-examination, which is inherent in determining the validity, authenticity and credibility of witnesses and their respective evidence.
In this particular case compromising on these rights would lead to unfair and prejudicial evidence. The demeanour of the witness cannot be seen by the court and all this boils down to the credibility of already tainted witnesses.
The late Justice Madan expounded on credibility and in his words “the witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do or say something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence”
If the Appeal division of the ICC does not overturn the ruling of the trial judges (more so by dint of last week’s Assembly of State Parties, the legislative organ of the ICC) directing that the Assembly reaffirms its understanding that the amended Rule 68 shall not be applied retroactively – then ICC will be acting perversely and the trial process rendered repugnant to justice – enough for the accused perhaps not to cede to its tainted jurisdiction or to ask that the process is a mistrial.
If a British or American citizen were in the dock at the ICC, the West certainly would be shouting itself sore that changing legal goal-posts midstream is perverse, accepting evidence without seeing the demeanour of 16 witnesses is wrong, that barring of cross-examination is against principles of law and cumulatively the court is acting as a Kangaroo Court!
Is the ICC then gearing towards becoming a Kangaroo court?