Hague: International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda on Thursday made a second attempt to have critical evidence obtained by the Waki Commission used in the case against Deputy President William Ruto and Joshua arap Sang.
Ms Bensouda applied to have 12 Waki-related documents, including the controversial Kenya National Commission on Human Rights (KNCHR) report, admitted as evidence.
The Commission of Inquiry into Post-Election Violence, popularly known as the Waki Commission as it was headed by Justice Phillip Waki, was tasked with the responsibility of investigating the circumstances surrounding the violence in which over 1,000 people were killed.
The documents were shown to and identified by former commissioner Gavin Alistair McFadyen when he testified before the court in July.
Some of them were handed to former ICC prosecutor Moreno Ocampo by the former mediator in the 2008 post-election conflict, Kofi Annan.
"The Prosecution seeks to tender these 12 items for the truth of their contents except insofar as the contents relate to the personal acts and conduct of the accused," Bensouda said yesterday.
From the onset of the application, Bensouda fought the impression that the materials fall under the category of "prior recorded evidence".
Under Rule 68 of Rules and Procedure and Evidence, prior recorded evidence is only admitted under a strict set of criteria, among them that they should not be prejudicial to the rights of the accused.
"The Prosecution submits that, while certain information contained in these items is testimonial in nature, it is not "prior recorded testimony" of a Prosecution witness, as contemplated in Rule 68," she said.
Bensouda said the documents were "relevant and probative of issues in the instant proceedings." She also said their potential probative value outweighed the prejudicial effect, if any, of their admission.
During MacFadyen's testimony, Ruto and Sang's defence objected to their introduction through him. They argued the materials were largely drawn from statements of persons who had not appeared before the court.
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