KENYA’s efforts to save Deputy President William Ruto from the ICC paid off yesterday, with the Appeal judges ruling that recanted testimony cannot be used against him.
The judges reversed a decision of their Trial Chamber colleagues, saying that the use of the repudiated testimony would be detrimental to Ruto and his co-accused Joshua Sang’s rights.
The Appeals Chamber said that the trial judges used the amended Rule 68 retroactively as the case against Ruto and Sang had already started.
The ruling is a major blow to ICC Prosecutor Fatou Bensouda, as among the statements in contention is one by a star witness of hers who refused to testify before the judges.
In her request for the admission of the statements in April last year, Bensouda said the prosecution would be deprived of critical evidence necessary to secure a conviction if they are disregarded.
In her application, Bensouda also said that the witnesses recanted their initial accounts due to interference from associates of Ruto.
The Appeal judges added they also found that the application of the rule would disadvantage Ruto and Sang as they would not be able to cross-examine the witnesses.
“We find that the prior recorded statements could not have been admitted under Rule 68 before the amendment. The application of the rule thus affected negatively the rights of Mr Sang and Mr Ruto,” Judge Piotr Hofmanski summarised the judgment on behalf of his colleagues.
He added that the trial judges erred in law by applying the rule retroactively as well as admitting evidence that could not be cross-examined by the accused.
Judge Hofmanski also said that just because the recanting witnesses testified, it does not mean that the defence cross- examined their prior recorded statements.
Kenya has used all its diplomacy channels, including rallying the African Union, to force the Assembly of States Parties to reaffirm its decision that the rule should not be used retroactively.
The Trial judges allowed Bensouda to add the recanted testimonies of five witnesses to her evidence using the amended Rule 68.
Ruto and Sang appealed the decision, saying it violates their rights to a fair trial and goes against the ASP consensus that the rule should not be used in the present case.
They also argued that Bensouda’s use of the evidence, from witnesses who cannot be cross-examined, affects the fairness of proceedings.
Their submissions were supported by the African Union, which told the Appeals Chamber that the Trial judges broke the law in admitting redacted testimonies as evidence.
The AU said that Article 51(4) is explicit that amendments to the Statute or the court’s rules “shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted”.
Allegations of planning meetings and financing of the post-election violence are at the centre of the statements that were in contention.
The statements belong to witnesses who had initially said they knew of the planning meeting or attended meetings where money was distributed.