Failure of the international temple of justice

Dust has not yet settled on the erroneous ruling of the International Criminal Court (ICC) on Deputy President William Ruto and Joshua Sang’s case. The court rewarded the prosecutor’s zeal to prosecute, by allowing her to go beyond the available evidence.

The court ruled under the amended rules of procedure and evidence Rule 68, which authorises the use of prior recorded testimony in trial, to allow prosecutors hostile witnesses’ testimony to be used after they admitted to have lied.

The ruling makes the reality clear, that even international courts, considered essential “temples of justice”, fail at a crucial juncture to give justice.

It appears that the court is not clear which testimony falls within the scope of Rule 68, which was amended at the 12th Session of the Assembly of State Parties to the Rome Statute on November 28, 2013. In fact, the court ruling is mind-numbing and its application of Rule 68 was unpredictable given all the known standards of criminal trial in tribunals and courts.

Even the International Bar Association, who were instrumental in persuading state parties to pass the above amendment in 2013, only saw the amendment to serve two purpose: One was to  allow evidence before trial in order to reduce time in trial.

Second, section 68(2)(b) according to them was meant to overcome obstacles to witnesses appearing in person to give evidence and not those who have recanted their own testimony.

Never was this section meant to eviscerate the right of the defendant to cross-examine prosecutor witnesses and for the court to bring in recanted hearsay testimonies. The right to cross-examine is crucial in any adversarial court system like the ICC. In an adversarial system, the “equality of arms” is an important principle.

The equality of arms requires that defence, just like the prosecution, should have enough tools in their arms. Court must not give the prosecution a “trump card.” 

The evidence and testimony used by prosecution must be credible, verifiable and willingly given. However, in this ruling the court decided to flip and shift the burden of production and persuasion.

Hearsay rule generally bars admission of both oral and written testimonies.

Unless the person who gave the statement is brought to testify in court under oath and cross-examined, both municipal courts and international courts have avoided such testimony. The testimony allowed here meets the two criteria for hearsay; they are made out of court and are provided to assert some truth.

Although there are a few exceptions to hearsay, for example the testimony of a dying witness in their last breath, assumed that people on death bed are truthful, ICC stretched that exception beyond any logic.

The court declaration that it does not matter whether the witnesses have sworn affidavits signed under free will, recanting their prior “influenced” and induced testimonies by prosecution, demonstrate the glaring nature of their error.

To their credit, they admit that there is no evidence or allegation of Mr Ruto or Mr Sang interfering with the prosecution witnesses. Finding interference by defendant might have been enough misconduct to reward the prosecutor. But there was no interference.

Even with that admission, ICC judges still found a scapegoat that the interference with prosecution witness is not linked to the defendant but might favour them. What a tired argument.

Furthermore, Article 51(4) bars the application of the amended Rule 68 if it is applied retroactively to the detriment of the person who is being prosecuted. Anybody familiar with the ASP discussion before they passed Rule 68 in 2013 knows that ASP did not intend it to apply to the ongoing cases.

In my view, ICC has a policy disagreement with ASP generally and they are taking it on these defendants. Any meaningful interpretation would have led court to the legislative history to infer the ASP’s intent.

Specifically Rule 68 preamble states that evidence shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted. Moreover Articles 24(2) and 51(4) anchor the international principle of non-retroactivity and does not limit the principle only on substantive issue but in all courts undertaking.

The judges refused to allow these sections to wield its power. The danger with this ruling is that ICC might continue to erode its “moral high ground”.

The writer is a law lecturer at the University of Nairobi