On Friday, the ICC ruled that recanted evidence of five witnesses would not be used in the case against Deputy President William Ruto and radio presenter Joshua Sang.
The ruling by the Appeals Chamber follows an appeal by Mr Ruto and Mr Sang against a decision, in August 2015, by the Trial Chamber admitting “for the truth of its contents”, the evidence of four witnesses who had appeared in court when they recanted the statements that they had recorded during the investigative stage of the case.
The Trial Chamber had held that, as required by Rule 68, both the prosecutor and the defence had had the opportunity to examine the witnesses in question regarding the contradictions in their testimonies. The Trial Chamber had also admitted the evidence of a fifth witness who had since disappeared.
When admitting the evidence, the Trial Chamber was satisfied that the application of the rule was not retroactive in effect and further that it carried no prejudice to the accused persons.
The main defence arguments during the appeal, in which the African Union was also allowed to file detailed observations, were that a promise had been made when amending Rule 68 in 2013, that it would not be applied to the Kenyan cases, an argument that had also been strongly canvassed by the Kenyan delegation during the 2015 Assembly of State Parties in The Hague, and further that the application of the rule had resulted in prejudice against Mr Ruto and Mr Sang.
In its ruling, the Appeals Chamber dismissed the first argument, and instead found “that there is nothing in the text of amended Rule 68 of the Rules that indicates that it could not apply to a specific case or, more generally, that it could not apply to pending cases.”
The Appeals Chamber, however, overruled the finding of the Trial Chamber that the manner in which Rule 68 was applied in the Ruto/Sang case was not retroactive in effect.
The Appeals Chamber held that retroactivity had to be determined by reference to the procedural rules that were in place on the date the trial commenced, and concluded that applying to the case a rule that came into force after the trial had started was retrospective in effect.
The Appeals Chamber also overruled the Trial Chamber that there was no detriment to the accused persons as a result of the application of the rule, and instead found that “the application of this rule negatively affected the overall position of Mr Sang and Mr Ruto in the proceedings at hand” because it resulted in additional exceptions to the principle that evidence shall be given orally and was a restriction on the right to cross-examine those witnesses.
To understand Friday’s ruling in context, the Rome Statute envisages an open hearing of the case against any person accused before the court, and as part of this, requires that “the testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence.”
As currently worded, Rule 68 was amended during the 12th ASP in 2013, and the purpose of the amendment was “to streamline the presentation of evidence by increasing the instances in which prior recorded testimony could be introduced.” Thus, the amendment to Rule 68 was to increase the number of exceptions to Article 69 of the Statute, which requires that evidence shall be presented orally in court.
The dismissal of the evidence signifies genuine problems regarding the gross interference with witnesses in the Kenyan cases before the court which have remained unaddressed.
In 2013, the trial chamber issued an arrest warrant against a journalist, Walter Baraza, on charges of witness tampering in the case against Mr Ruto and Mr Sang. Last year, the court issued a second arrest warrant for witness tampering in the same case, this time against a lawyer, Paul Gicheru, and Philip Kipkoech Bett.
When issuing the second warrant, the Trial Chamber noted an “element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings.”
Both warrants have remained unexecuted, the first one for three years now. Attempts to arrest Mr Baraza by way of enforcing the warrants have been unsuccessful as they triggered curious court cases which have culminated in an application before the trial chamber itself, that Mr Baraza should be allowed to appear before the court on a summons, like Mr Ruto and Mr Sang have been doing, rather than on an arrest warrant. There has been no known attempt to arrest Mr Gicheru or Mr Bett as a result of their arrest warrant.
In addition to the two arrest warrants, Mr Meshack Yebei, whom the Ruto defence claimed was their witness, was murdered in late 2014 but no known investigation has followed the murder, and the defence has not pressed for any action on the murder of their alleged witness.
Following the reversal of the decision to admit the evidence of witnesses who had recanted their testimonies in the Ruto/Sang case, there is understandable speculation that this development now makes it more likely than before that the two accused persons will eventually be acquitted. Indeed, Sang has been quoted as having characterised the ruling as one step towards freedom.
Whatever the eventual outcome of the case against Mr Ruto and Mr Sang, the lack of effective mechanisms to address the clearly demonstrable problem of witness interference blights the proceedings and will prevent the two accused persons from claiming a high moral ground merely because of an acquittal.
The continuing willingness of the Kenyan State to indulge the sophism surrounding attempts to transfer for trial at The Hague the three persons accused of witness tampering in the Ruto/Sang case raises questions on the State’s role.
The indulgence that the Appeals Chamber provided to the AU in this appeal is notable. The Chamber allowed the AU amicus curiae status in the proceedings, a privilege the court rarely extends.
The Appeals Chamber then went out of its way to express that it had had full regard to the fact that the AU application to make submissions in the appeal was based on a directive by the continent’s Assembly of Heads of State and Government aimed at “placing before [the court] all relevant material arising out of the negotiations of Rule 68 of the Rules during the twelfth session of the ASP in November 2013.”
Since the AU is not a member of the ASP in its corporate capacity, what capacity or interest did the organisation have in seeking to interpret proceedings in which it did not take part?
Ultimately, the Appeals Chamber did not uphold the AU interpretation of the process leading to the adoption of Rule 68. What is important, however, is that the Appeals Chamber humoured the AU, which was a clear meddler in the specific context of those proceedings.