Defence teams of Deputy President William Ruto and radio journalist Joshua arap Sang will appeal a decision in which the prosecution was allowed to use witnesses recanted statements as evidence in their cases.
In separate applications filed yesterday, the two teams argued that Trial Chamber V (a) judges erred in interpreting the amendment to Rule 68 of the Rules of Procedure and Evidence.
“The majority erred in its consideration … by failing to interpret “retroactively” properly and improperly assessing the application of amended Rule 68 in the abstract and thus failing to find that its application breaches Article 51(4) in view of the finding that the admission of the prior recorded testimony is of some detriment whether unduly or otherwise,” Ruto’s lawyer Karim Khan argued.
They said allowing use of recanted statements will affect fair trial and also infringe on the rights of the accused. Khan’s team outlined 11 issues which include applicability and interpretation of Rule 68 in ongoing cases as well as the reliability of prior recorded statements of the five witnesses.
The team asked for leave to get a clarification if the five witness were interfered with and if that is what led them to recant their evidence. Of concern was also the consideration of contradictions of evidence and absence of audio and video recording of the interviews to assess the reliability of the statements of the five witnesses.
The defence also wants the appeal judges to determine if prior recorded statements of the five witnesses were done for the purposes of Rule 68. Khan argued that allowing use of prior recorded statements will affect the fair and expeditious conduct of proceedings and the outcome of trial.
In his view admitting prior recorded statements will also materially advance the proceedings hence the need for the Appeal Chamber to review the Trial Chamber’s decision. He further complained that the approach used in allowing use of evidence of witnesses who recanted was also flawed in that the alleged witness interference took place prior to the adoption of Rule 68.
He said it was also unfair for the trial chamber to allow ‘unsworn, hearsay statements of an absent witness’ without giving the accused an opportunity to cross -examine the allegations made against them.
The first issue concerns Ruto’s fair trial right to confront the witness against him… is a linkage witness whose unsworn, hearsay evidence goes directly to the acts and conduct of the accused,” Khan said. In his application, he further questions the applicability of the amendment to Rule 68 and the issue of its retrospectivity at the time of its adoption.
When the amendment to Rule 68 was adopted in 2013, Kenya and other African states were told that it would not be applied retrospectively.
The Government of Kenya through the Attorney General has already raised concerns after the Trial Chamber allowed the prosecution to use prior recorded statements of five witnesses who recanted their evidence.