Ruto, Sang fight to have cases dropped citing ‘shoddy probe’

Eldoret North MP William Ruto and radio presenter Joseph arap Sang want their cases at the ICC dropped on the grounds that the prosecutor did not conduct proper investigations.

They also say the judges erred by relying on anonymous evidence alone, failed to apply rules on evidence reasonably and consistently and accepted a weak amended Document Containing Charges.

These four issues form the bedrock of their arguments against the confirmation of charges.

Mr Sang also seeks to have the judges decide whether his alleged level of contribution meets the threshold set out in the Rome Statute under which the Hague-based ICC was established.

The MP and the radio presenter will also be relying on the arguments by Judge Hans-Peter Kaul, who maintained in his dissenting judgement that the Kenyan cases do not merit pursuit by the ICC but by a Kenyan court. (READ: German judge insists suspects should have been tried in Kenya)

Mr Sang and Mr Ruto argue that “the lack of comprehensive investigations, conducted with the aim of ascertaining the truth about what occurred during the post-election violence in Kenya, has affected the overall fairness of the proceedings.”

In their notices, the two want the ICC to rule on whether the Prosecutor’s failure to investigate leads that would have exonerated them failed to affect the quality and efficiency of the evidence.

They also want the judges to revisit issues around the credibility and reliability of the Prosecutor’s witnesses against them, whose identities were kept under wraps, and have asked the judges to decide whether this had an impact on their role.

“By confining its analysis to the evidence put before it, rather than considering the evidence which could have been put before it had appropriate investigative measures been taken, the Chamber also fettered its ability to make appropriate inferences of fact,” Mr Sang’s application reads.

The appeal on the grounds of jurisdiction will be handled directly by the Appeals Chamber which consists of judges Sang-Hyun Song (ICC president), Akua Kuenyehia, Erkki Kourula, Anita Ušacka and Daniel David Ntanda. Their notice of appeal will be considered by the same three-judge bench that committed them to trial.