A pessimistic prosecution and an optimistic defence team.
That is how the oral hearings on the no-case-to-answer motions concluded on Friday with the prosecution and the victims questioning the chamber’s impartiality while the defence was buoyant having put up a spirited argument for the termination of the cases against Deputy President William Ruto and former radio broadcaster Joshua Sang at the International Criminal Court (ICC).
Outside the courtroom, Jubilee cheerleaders were also confident this would be Mr Ruto’s last trip to the ICC since the initial appearances in April 2011.
“As a lawyer, it is always difficult to predict the outcome of a case but from what I have heard, this case cannot move from here. I am cautiously optimistic. In fact if the ICC was firm, we would not have been here today,” Senate Deputy Majority Leader Kipchumba Murkomen told the Sunday Nation.
His sentiments captured the mood among the Jubilee leaders who had accompanied Mr Ruto to The Hague for the oral hearings of the no-case-to-answer motions by which the defence teams are seeking the termination of the crimes against humanity cases.
“Anything short of an acquittal will confirm our fears that this case has a predetermined end and what we are being treated to is just drama. This case has neither legs nor arms,” National Assembly Majority Leader Aden Duale said.
At the end of the four days of hearings in a case whose outcome will be anxiously waited, Mr Ruto summarised it as “being inside the kitchen” as Jubilee leaders mobbed him for tearing into shreds the prosecution’s evidence.
Even the often abrasive Karim Khan for Mr Ruto this time kept his cool except for occasional barbs at prosecution evidence and for which Presiding judge Chile Eboe-Osuji cautioned him against.
While the defence teams cautiously celebrated, the prosecution appeared disappointed not only with the defence but also the chamber, the latter which senior trial lawyer Anton Steynberg appeared to suggest had already made up their minds.
The prosecution had taken the heat as it was put to task on the standard to be applied in assessing whether or not Mr Ruto and Mr Sang have a case to answer.
QUALITY OF EVIDENCE
In fact, the prosecution was left with several questions regarding the position of the judges which appeared to be close to that of the defence that the quality of the evidence will be a major determining factor.
Mr Steynberg and victims lawyer Wilfred Nderitu had protested at what they perceived a trial chamber taking sides with the defence on the standard to be applied in determining the case at this stage.
The prosecution and victims had argued that the standard to be applied at the no-case-to-answer stage was lower and should not go into the analysis of the evidence but give the prosecution the benefit of the doubt.
“The defence wants the chamber to apply a different standard, not even at the 11th hour but after the clock has struck midnight yet the parties have operated on the criteria that only requires that the evidence be taken at its highest level without analysis at this stage,” Mr Steynberg told the trial judges Chile Eboe-Osuji, Robert Fremr and Olga Carbuccia.
But the chamber appeared to suggest otherwise.
“At the very beginning of your oral submissions you made a statement which really attracted my attention when you said that the chamber should focus on assessment of quantity of evidence rather than on assessment of its quality. In my view it’s interesting, because in effect, in my view it characterised in a nutshell the issue before us. Do you think that such an assessment focused on quantity of evidence would meet requirement of Article 64(2), that chamber should ensure the trial is fair and expeditious?” judge Fremr asked the prosecution.
The judge further argued that evidence should generally prove some allegation. “Do you think that it’s even possible to call or to work with this term without looking at the quality, on the strength of evidence?” he posed.
According to judge Fremr, the evidence the prosecution had presented was not likely to change even if the suspects were put on their defence.
“Thank you, your Honour. On the first point, it is not unfair, in my respectful submission, to put the accused on their defence where the prosecution’s case meets the standard that the chamber has annunciated, has put forward, and that is the standard of the prosecution’s case taken at its highest requires an answer,” stated Mr Steynberg.
The senior trial lawyer stated that it would be improper for the chamber to start assessing the guilt or innocence of the accused separately at the halfway stage rather than wait for the defence to put in their case and make that determination at the end of the case.
“I understand the function of this inquiry to be a filtering mechanism to filter out cases that could not on any reasonable standard result in a conviction regardless of what follows. It is, of course, true that the Prosecutor—Prosecution cannot rely on an accused to convict him or herself. But it does often happen that during the case of the — during the defence case, evidence is elicited either in the defence case or in any rebuttal case that may be permitted which does establish or bolster evidence on certain points which might have been weak or lacking at the end of the constitution case, even where that evidence was not so weak or lacking to fall short of the no-case-to-answer standard,” the prosecution protested only to be interjected by judge Osuji who also seemed to agree with his colleague, Justice Fremr.
“But this is a very serious criminal case, very serious offence. And the defence case takes it very seriously. That’s why — they should deserve that level of attention to the detail,” judge Osuji said.
At some point, the prosecution openly told the judges that they will appeal the decision, pointing to a feeling on the prosecution side that the chamber had already made up their minds.
Mr Osuji shot back, telling Mr Steynberg that the chamber will not be intimidated by such language.
“We do not take it kindly. We know you have that avenue but you don’t have to tell us now,” an agitated judge Osuji said.
Even as the defence remains optimistic, the decision on the matter will be the most anxiously awaited — perhaps just like the confirmation of charges decision of January 2012.