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Bensouda defends use of recanted evidence, cites witness interference

By Fred Makana | December 10th 2015

International Criminal Court Prosecutor Fatou Bensouda has defended her decision to use recanted evidence in the case against Deputy President William Ruto and journalist Joshua Sang.

In her submissions opposing Ruto and Sang’s “no case to answer” motion, Bensouda says issues of reliability of the recanted evidence do not arise at the “no case to answer” stage.

Bensouda told Trial Chamber V Presiding judge Chile Eboe-Osuji, judges Olga Herrera Carbuccia and Robert Fremr that even without the use of prior recorded statements, the prosecution has sufficient evidence, upon which, a reasonable trial chamber could convict the accused on at least one of the relevant modes of liability.

Ruto and Sang’s defence teams have filed motions requesting the Trial Chamber to find they have no case to answer, to dismiss the charges against them and enter a judgment of acquittal.

The ICC Prosecutor said the Chamber has already decided in the Rule 68 decision that it will determine the evidentiary weight of the prior recorded statements once the entire case record is before it.

“For present purposes, however, it suffices to submit that the circumstances surrounding the witnesses’ recantation of their prior statements are such that they cannot, at this stage, provide a sufficient basis to conclude that the Rule 68 Statements are incapable of belief,” she states in documents filed at the court’s registry.

Bensouda claims that when the appropriate stage for making submissions on the credibility and reliability of evidence is reached, the prosecution will argue that witness interference has been clearly established as the catalyst for the recantation of the compelled witnesses in this case.

She says the defence provides no legal authority to support such a narrow interpretation of the Chamber’s Decision, other than relying on the dissenting view (on this issue) of Judge Eboe-Osuji when the court decided to use recanted evidence.

“The entirety of Rule 68 Statements were submitted by the Prosecution, discussed at length with the witnesses and in legal arguments and ultimately admitted by the majority of the Trial Chamber as proof of the truth of their contents -- without reservation, except that the admission is without prejudice to the ultimate weight to be ascribed thereto by the Chamber,” Bensouda says in her papers.

Bensouda wants the court to dismiss Ruto’s arguments that the prosecution’s case is built almost entirely on hearsay.

“At the outset, the Prosecution notes that for the most part, the Rule 68 witnesses directly witnessed the events described in their Rule 68 Statements thus, their statements contain predominantly direct evidence, not hearsay. Once admitted, it is for a Trial Chamber to determine the weight to be attached to hearsay evidence,” she states in her response.

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