Deputy President William Ruto Friday put on a brave face in light of Thursday’s ICC developments assuring Kenyans that the case against him is crumbling.
Through his lead counsel Karim Khan, Ruto said the historic decision allowing use of prior recorded witness evidence in his crimes against humanity case has, effectively, invented a new law based on cooked evidence.
Ruto maintained the case has been poorly investigated and wrongly focused from the start. He was however tight-lipped on the next cause of action following the decision, which analysts say could be a game-changer in his case.
“The rule 68 decision creates new law on the application of a new, controversial and previously unused rule,” Khan said in a veiled attack on Judges Olga Herrera Carbucia and Robert Fremr ruling.
ICC Chief Prosecutor Fatou Bensouda’s application to use this evidence was predicated on the new Rule 68 of the Rules of Procedure and Evidence as amended by the Assembly of State Parties in November 2013.
The new rule provided for three new instances where prior recorded testimony can be introduced at trial.
Previously, the rule provided only two grounds; where both parties had examined the evidence of witness- who is absent at trial- during its recording and where a present-at-trial witnesses are not opposed to their introduction and are willing to be examined on it.
The new instances are; where the recorded evidence goes to prove a matter other than the acts and conduct of the accused, where it comes from a person who has subsequently died, presumed dead or unable to testify orally and where it comes from a person who has been subjected to interference.Bensouda applied under the latter two instances.
Ruto’s side, however, opposed application of the rule on the basis of an undertaking allegedly made at the ASP to the effect that the rule would not apply retrospectively and in the Kenyan cases.
“Whether we seek leave to appeal or not will be revealed to the Trial Chamber before any other party,” Khan said in the statement yesterday. He added: “Regardless of the decision on rule 68, the essential characteristics of the case remain largely the same, as far as I am concerned.”
He reiterated his observations before the trial chamber that the case has been poorly investigated and “wrongly focused from the start.”
“I remain confident that the Trial Chamber will be more than able to assess the veracity or otherwise of the case against HE William Ruto at the appropriate time,” Khan said.
He noted that the trial chamber repeatedly stated in their decision that the allegations of witness interference by Ruto or his defence remained unproven. “We continue to assert that they are absolutely false,” Khan said.
In their ruling, the judges said they had noted an element of a system of interfering with several witnesses. They said this gave rise to the impression of an attempt to “methodically target” witnesses in order to hamper the proceedings.
Although they did not link this to either the defense of the accused, the judges said they will not allow such hindrance and will safeguard the integrity of the proceedings.
“The trial chamber also repeatedly emphasized that it was not assessing the weight, reliability of veracity of allegations made by the prosecution – nor was the Trial Chamber considering defence cross examination and defence evidence put to prosecution witnesses,” Khan said yesterday.
He said in his understanding, the judges will perform that function when it assesses whether the prosecution has discharged its burden of proof against Ruto.
Presiding Judge Chile Eboe Osuji did not sign Thursday’s judgment. He, however, drafted a separate “partly concurring opinion” in which he agreed that the prior recorded evidence should be admitted but not under the controversial Rule 68.
He said the rule does not apply both in its new and old sense, anyway. He said the rule intends to make trials simpler and shorter, not longer and more complicated. Further, he said, the rule only talks of “testimony” which presupposes statements made on oath.
The witness statements allowed by his colleagues were not made under oath.
But the Nigerian judge allowed the evidence under Article 69(3) of the Rome Statute which he said affords special and exceptional circumstances under which such evidence can be entertained.
He quoted Khan’s own emails and public statements complaining of attempted witness interference by other lawyers and generally pleading with people to give ICC room to do its work.
Osuji said witnesses could have been cowed by conduct of Kenyan executive, parliament, community and church leaders, bloggers and media reports whose object was to prevent the trial running its course.
“The conducts in question include high profile campaigns on the diplomatic front, as well as parliamentary debates and resolutions. Notably, the Chamber was once constrained to conduct a hearing as to the forensic consequences— specifically in relation to witnesses in this case—of a certain resolution passed by the Parliament of Kenya calling for Kenya’s withdrawal from the ICC, while the trial was in progress,” he said.