The International Criminal Court’s Appeals Chamber has this evening delivered a landmark ruling reversing the Trial Chambers’ decision to use recanted evidence in the case against Deputy President William Ruto and radio journalist Joshua Arap Sang.
The verdict, delivered on Friday evening, dents a major blow against ICC Chief Prosecutor, Fatou Bensouda who depended on the recanted evidence of five anti-Ruto witnesses to sustain her case against Ruto and Sang.
The ruling also is a relief to both Ruto and Sang, who had protested the use of withdrawn evidence in their cases.
According to law experts, the new development waters down the case against Ruto and Sang and will buttress the no-case answer moved by Ruto and Sang lawyers before the Trial Chamber.
The Appeals Chamber, in its ruling, noted the Trial Court ‘erred’ in failing to establish that the recanted evidence was detrimental to the accused.
“The Appeals Chamber found that the application of this rule was retroactive as the trial had started on 10 September 2013, before the amendment to the rule, and detrimental in the sense that the disadvantage, loss, damage or harm to the accused caused by its application negatively affected the overall position of Mr Sang and Mr Ruto in these proceedings,” said Appeal Chamber judge Piotr Hefmanski who delivered the ruling on behalf of the five-bench Appeal judges who handled the appeal case.
“For these reasons, the Appeals Chamber decided to reverse the decision to the extent that prior recorded testimony had been admitted under amended rule 68 for the truth of its contents,” ruled Hefmanski.
The Judge also observed that the application of the amended rule led to restrictions to cross-examine the five witnesses by the accused.
The verdict on whether or not Rule 68 was to be used in the case facing Deputy President William Ruto and radio journalists Joshua Arap Sang weighs so much on the sustainability of the cases facing the two Kenyans.
The ruling will send ICC Chief Prosecutor back to the drawing board to ascertain if she could get enough evidence to sustain the cases.
The decision of the Appeals Chambers now means the Court will no longer rely on the evidence of the five witnesses who confessed to be part of the meetings in which Ruto planned the post-poll violence and which they have now disowned.
The Trial Chamber, on August 19, 2015 by majority, admitted into evidence the out-of-court and unsworn statements of the five “for the truth of contents” under the now famous Rule 68 of the ICC’s Rules of Procedure and Evidence.
In their appeal, Ruto and Sang challenged the admission of prior recorded testimony in August 2015, as sought by Bensouda. Bensouda requested to use recanted evidence under Rule 68, which was adopted at the 12th Assembly of States Parties in 2013.
Ruto and Sang’s defence teams told the court that it erred when it admitted the use of recanted evidence of the five crucial witnesses who had withdrawn or recanted their testimonies.
The prosecution team, on the other hand, opposed the application on grounds that the five witnesses were intimidated or bribed to ensure that the case collapses.
The controversial Rule 68 has not only been opposed by Ruto and Sang’s defence teams but has also been criticised by the African Union which has accused the ICC of violating an agreement made during the Assembly of States Parties.
Kenya has been mobilising the international community, including the Assembly of States Parties, to stop the use of recanted evidence in the Ruto case, saying the amendment to Rule 68 of the Rome Statute was made after the case had started and could not, therefore, be applied.