The International Criminal Court (ICC) has admitted parts of a report on the inquiry into the 2007/08 Post Election Violence, as evidence in the case against Deputy President William Ruto and radio journalists Joshua Sang.
The Trial Chamber V(a) admitted part of the report prepared by the Commission of Inquiry into Post-Election Violence Report (CIPEV) headed by Appeal Courts judge Philip Waki.
The judges however clarified that they were only admitting the portions that did not directly touch on Ruto and Sang, noting that they would form the background of the case.
The Waki Commission was set up to investigate the PEV in 2008. Its report touches on the killings, destruction of properties and other activities that took place following the announcement of the disputed presidential election results.
The commission came up with a list of suspects whom it proposed to have investigated further for their alleged involvement in the PEV. It handed an envelope containing the names to the ICC prosecutor and from it, six persons including the two accused, were charged.
The Waki report was extensively quoted by one of the commissioners Gavin McFadyen of New Zealand, when testifying at the ICC as prosecution witness in July last year. He claimed that Ruto was one of the persons in the Waki envelope but Sang was not.
During his testimony the Prosecution asked to have portions of the report admitted as evidence as well as the testimony of witnesses and persons who appeared before the commission to testify. The prosecution said it intended to tender the document for the truth of their content except where they relate to personal acts and conduct of the Accused.
The Chamber directed the prosecution to make the application in writing. Thursday, the Chamber admitted as evidence the portions which do not touch on the alleged acts and conduct of Ruto and Sang.
”In respect of the Defence’s assertions, the Chamber finds that the document is relevant, particularly to the background of the case. The Chamber also notes that the document has been supported by the testimony of Witness 13, who referred to the methodology of the CIPEV in the elaboration of this report” the court ruled.
The judges said on the face of it, the value of the document in the case outweighed any harm that would be caused to the two accused.
“The excerpts on which the Prosecution intends to rely do not refer to the alleged acts or conduct of the Accused,” they noted.
The Chamber has however rejected a report by the Kenyan National Commission on Human Rights (KNCHR) titled “On the brink of the Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence’.
It rejected 11 other documents, including the testimony of individuals who testified before the Waki Commission. This is because Ruto and Sang were not given a chance at the Waki inquiry to cross-examine the witnesses.
They would have been required to appeal in court in persons for cross examination failing which the accused’s right to fair trial would have been violated.
The admitted material will then be considered alongside all the other evidence gathered in the trial to decide whether the two accused are guilty of the offenses they are charged with.