The International Criminal Court Appeals Chamber has rejected the use of recanted evidence in the case against Deputy President William Ruto and Journalist Joshua Arap Sang.
The decision greatly dents Prosecutor Fatou Bensouda’s case against the two after highly depending on the five witnesses who have since withdrawn.
This is presumed to be a big win for Mr Ruto and Mr Sang since the prosecution had exhausted their witnesses.
Here is the breakdown of the 5 rejected statements the ICC prosecution had hoped to use:
One of the witnesses had implicated Ruto in meetings whose agenda included buying weapons to commit the alleged killings.
Another witness had claimed that the DP was a political kingpin in the Rift Valley and used his influence to drive the post-election violence.
The third witness, had in his statements made reference to Ruto's alleged utterances inciting violence in parts of Rift Valley. He also gave evidence against Sang and other people allegedly involved in planning violence.
The fourth witness purported to have attended planning meetings on how to execute the alleged crimes. He later withdrew from the case stating that his evidence was induced by offers to live abroad and he had signed the statements following pressure from ICC investigators.
The fifth witness' account was scanty as most of the information in the public domain was censored.
Last year, Ms Bensouda had lamented that the evidence in her case against DP Ruto and radio journalist Sang was not sufficient to support the charges.
Ms Bensouda, hence resorted to making an application to ICC judges, for her team to be allowed to rely and use statements collected and recorded outside the courtroom prior to the case.
Joshua arap Sang Celebrates the verdict of the ICC Appeals chamber
Update: The ICC has put out the following statement
Today, 12 February 2016, the Appeals Chamber of the International Criminal Court (ICC) decided unanimously to reverse the decision of ICC Trial Chamber V(A) of 19 August 2015, which granted the Prosecutor’s request for admission of prior recorded testimony into evidence pursuant to amended rule 68 of the Rules of Procedure and Evidence (RPE).
The Appeals Chamber in this appeal was composed of Judge Piotr Hofmański (Poland), Judge Silvia Fernández de Gurmendi (Argentina), Judge Christine Van den Wyngaert (Belgium), Judge Howard Morrison (United Kingdom) and Judge Péter Kovács (Hungary). Judge Hofmański, who presided over this appeal, read a summary of the judgment in open court.
The Appeals Chamber considered that there was nothing in the drafting history of amended rule 68 of the RPE that revealed an error in the conclusion of the Trial Chamber that the amended rule may apply to this case, subject to a consideration of article 51 (4) of the Rome Statute providing that amendments to the RPE shall not be applied retroactively to the detriment of the accused.
It noted that rule 68 of the RPE was amended by the Assembly of States Parties on 27 November 2013. 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.
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.
The trial of William Samoei Ruto and Joshua Arap Sang opened on 10 September 2013 before Trial Chamber V(A). Mr Ruto and Mr Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in the context of the 2007-2008 post-election violence in Kenya.
