Deputy President William Ruto and Joshua arap Sang made a giant step towards acquittal of crimes against humanity charges after the International Criminal Court Appeals Chamber reversed the earlier decision that allowed the use of unsworn witness statements.
“…the Appeals Chamber decides to reverse the impugned decision to the extent that prior recorded testimony was admitted under amended Rule 68 of the Rules for the truth of its contents,” Appeals Chamber presiding judge Piotr Hofmaski who read the summary of the unanimous decision in open court on Friday said.
“The Appeals Chamber considers that the prior recorded testimony was admitted without any proper opportunity for the accused to cross-examine the witness. The Appeals Chamber notes that some witnesses testified in court and recanted the content of their prior recorded testimony. In these circumstances, even if the accused had an opportunity to question the witness because they appeared before the court, the Appeals Chamber considers that, in the absence of the Prosecutor eliciting incriminating evidence from the witness in examination-in-chief, such questioning does not amount to a meaningful cross-examination,” the judge said.
Apart from Mr Hofmaski, the other Appeals judges are Silvia Alejandra Fernández De Gurmendi, Christine Van Den Wyngaert, Howard Morrison and Péter Kovács.
It now means Prosecutor Fatou Bensouda will not rely on the evidence of five witnesses who either recanted their statements or refused to testify.
It also means the ICC Trial Chamber judges will have to expunge the evidence of the five witnesses from the record of evidence they will be considering when determining whether Mr Ruto and his co-accused Joshua Sang have a case to answer.
The Appeals Chamber judgement sparked celebrations from Mr Ruto’s allies and lawyers.
“This is a sign of things to come. We are gratified that the Appeals Chamber has reaffirmed the true legal position and we are confident that the ultimate victory is in the offing. This is good news. It is the law,” Senate Deputy Majority Leader Kipchumba Murkomen, an ally of the Deputy President said.
“It is over. It is over! Without the recanted testimony there is no incriminating evidence. The case is wobbling because the concerned witnesses were key to this case. Obviously, this will have significant influence on the other ruling (no case to answer ruling),” University of Nairobi law lecturer Dr Duncan Ojwang said.
International law expert Nick Kaufman who represents journalist Walter Barasa in the case against witness tampering said Ms Bensouda now has to consider whether to seek for termination of the charges.
“(Prosecutor) Fatou Bensouda has herself acknowledged that she will face considerable difficulties in sustaining a conviction without the prior recorded testimonies. Consequently she will be considering the viability of a continued prosecution of Ruto and Sang,” Kaufman said.
In Mr Ruto’s North Rift stronghold, scores of people who watched the judgement in restaurants expressed optimism that it will strengthen the defence team.
“This is clear evidence that the prosecution team did shoddy investigations from the start and the case should have collapsed long time ago,” said Mathias Korir an Eldoret resident.
The region suffered some of the worst violence that followed the 2007 general election in which 1,133 people were killed and nearly 600,000 displaced from their homes.
Initially, six people, three each from the competing parties of ODM and PNU had been charged.
The other four suspects -- President Uhuru Kenyatta, former civil service head Francis Muthaura, former ODM chairman Henry Kosgey and former police boss Hussein Ali -- had their charges dropped for lack of sufficient evidence.
‘‘We have long expected the truth to prevail,” said Samuel Too from Burnt Forest. But some of the victims who requested not to be named said the prosecution should soldier on.