International Criminal Court's decision mockery to Africa, negates fair trial

First, I urge that entreaties and prayers, be made on behalf of all men, for Kings and all who are in authority so that we lead a tranquil and quiet life in all godliness and dignity. 1 Timothy 2:1-3

The fears expressed by Kenya and Africa during the 12th ASP in November 2013 regarding the diabolical intents of those seeking the amendment to rule 68 of the Court’s Rules of Procedure and Evidence has finally materialised with the majority decision of the trial chamber in the Ruto and Sang case to admit the unsworn statements of five witnesses.

Kenya’s concerns were two-fold. First, it was strongly observed that evidence that could be critical in the Chamber’s final verdict might be admitted without the all-important safeguard of cross-examination. Second, while the proposed amendments were framed for ASP’s consumption as arising from “lessons learnt”, it was clear that the so-called lessons were perspectives originating in the main from the Prosecution while ignoring the other stakeholders, including those of the Defence.

Despite protestations from African states and a number of reputable human rights NGOs, including Amnesty International and the International Bar Association, the amendment was pushed forward by the innocuous Working Group on Lessons Learnt, which argued that the rule was necessary to expedite trials and in the interest of efficiency despite the orality rule propounded by article 69 of the Rome statute. To cushion against abuse of the rule, ASP resolved that the rule would not be applied retroactively to the prejudice of a criminal defendant.

Given the unfortunate decision of the court to proceed with the admission of unsworn statements into evidence, at least five reasons can be advanced for challenging this ruling.

First, the court failed to take heed of the letter and spirit of the amendment. Instead, it adopted an extremely positivist reading of the rule observing that the failure by ASP to expressly provide for time bar against the application of rule 68 demonstrated its intention that the rule would apply to ongoing proceedings at time of enactment of the rule. A faithful examination of the intent and purport of the amendment would in my view have led the court to caution itself in applying this rule in proceedings that were already live.

Second, the court demonstrated an unusual reticence towards the legislative history of the amendment at the ASP itself. In this regard, the court declined Kenya’s application to provide legislative history on the rule noting that Kenya’s participation would privilege the views of one state party over the collective will of the ASP reflected in amendment to the rule. Curiously, the court admitted legislative history on the rule contained in the Report of the Working Group on Lessons Learnt, a body that is neither recognised in any statutory scheme of the Rome statute and whose membership comprises largely of court officials, including the prosecution and registry offices. Had the court been serious, it would have nevertheless acknowledged the views of the African Union transmitted via letter dated April 7 2015 and reiterated in a resolution of the AU Assembly in July. That AU views were not even dignified with a mention.

Third, the court’s approach to the prohibition against retroactivity is suspect. The court narrowly constructed the notion of non-retroactivity to apply only when substantive aspects of the statute are implicated and not where procedural questions are at issue. This reasoning suggests that procedural guarantees so sacrosanct especially in criminal proceedings have no bearing on substantive entitlements of criminal defendants.

Fourth, in paragraph 23 of the majority decision, the court erroneously notes that the application of rule 68 to the present proceedings do not alter anything which the defence has previously been entitled as a matter of right. The application of the rule constitutes a serious affront to various elements of fair trial guarantees, including the right to cross examination which is closely tied with the presumption of innocence. Not only does cross examination enable the accused to challenge the accusations of a witness, but allows the judge to weigh the demeanour of the witness.

There is something patently wrong, even sinister, when a judicial system sanctions the replacement of evidence obtained viva voce before the court with unsworn statements of persons not before it or persons who contradicted their previous statements on appearance before court.

Lastly, the standard of proof adopted by the chamber is well below the ‘beyond reasonable doubt’ test. The Chamber noted that all it required was be satisfied that evidence of such interference be ‘sufficiently specific and of probative value.’

The upshot of this approach is that the chamber enjoys such expansive discretion in determining the existence of witness interference and the defence can do little in countermanding allegations of interference as presented by the prosecutor.

To permit this court to continue playing Russian roulette with substantive justice is not only impermissible but an irresponsible shirking of sovereignty.

Kipkorir is an advocate of the High Court