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Contentious Rule 68 expanded avenues for using recorded testimony

By Nzau Musau | November 28th 2015

The report of the Assembly of State Parties on Thursday reaffirming the non-retroactivity of Rule 68 does not beat the considerations made by judges while deploying the rule against Deputy President William Ruto.

In their August 19 decision, trial judges Olga Herrera Carbucia and Robert Fremr said the 2013 ASP which amended the rule failed to include any express time limitation as to when it would apply.

Amended at the 12th ASP meeting in November 2013, the rule expanded the avenues for admitting prior recorded testimony by including instances of unavailable witnesses and witnesses who have been interfered with.

“The resolution adopting the amended Rule 68 also does not contain a time limitation, although, as a preamble to the amendment of the Rule, it could be a source of interpretation,” the judges said.

The judges explained that the ASP is capable of imposing such a limit, and has done so in other contexts. They gave the example of ASP’s handling of part of Article 15 of the Rome Statute where it expressly provided that the court shall exercise jurisdiction over the crime of aggression subject to a decision to be taken after January 1st, 2017 by majority of States Parties.

Further the judges said, the 2013 ASP merely emphasised the application of the retroactivity principle “without specifying anything further.”

For the second time, Thursday’s report restated Article 51 (4) provisions on non-retroactivity of amendments.

Although the proposed Kenyan text had attempted to provide a temporal scope for application, the final text adopted does not or is unclear.

“The Chamber considers that the only conclusion to be drawn from the ASP resolution’s language is that the amended Rule 68 may apply in this case subject to a consideration of Article 51(4) of the Statute.”

“Article 51(4) would only bar the application of the amended Rule 68 if it applied retroactively to the detriment of the person who is being prosecuted,” the judges said. Of note, and in what could render a nullity of all Kenyan efforts with regards to Rule 68, the judges went on to say they were actually not applying the rule retroactively but rather prospectively.

In their understanding, retroactive application would be where the prosecution was seeking to alter anything the defence had previously been granted or entitled to as a matter of right.

“This is not a situation where, for example, the Prosecution attempts to apply an amended admissibility provision to exclude evidence previously admitted into the record. Here, the Prosecution is seeking to apply the provision prospectively to introduce items into evidence for the truth of their contents,” the judges said.

Even if the application were to be considered retroactive, the judges added, it would not be detrimental to the interests of the accused.

“This conclusion is consistent with the jurisprudence of the International Criminal Tribunal for the former Yugoslavia concerning the applicability of amendments analogous to Rule 68,” they said.

In further rendering the efforts of Kenya to block Rule 68, the presiding judge in the case, Chile-Eboe Osuji found separate grounds to admit the recanted evidence, is distinct from Rule 68.

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