The issue of what standard of proof judges should use when considering defence applications for the acquittal of Deputy President William Samoei Ruto and former journalist Joshua arap Sang dominated the final day of hearings on those applications.
Lawyers representing Ruto and Sang have applied to the International Criminal Court (ICC) to dismiss the case against their clients before they present their defence. They argued on Wednesday and Thursday that the prosecution had failed to produce evidence to support allegations that Ruto and Sang had been involved in the violence that erupted after the December 2007 elections in Kenya.
Both men have been charged with three counts of crimes against humanity for their alleged roles in violence in the Rift Valley region. They have been on trial since September 2013. The defence filed "no case to answer" motions following a decision by Trial Chamber V(a) to allow such applications once the prosecution closed its case.
In their written submissions, the defence have argued that the standard of beyond reasonable doubt should be used when assessing the prosecution's evidence and whether the defence should present their case.
On Friday, the lawyer for victims, Wilfred Nderitu, dealt at length with the issue of what standard of proof should apply in assessing the acquittal applications as he sought to answer questions Presiding Judge Chile Eboe-Osuji asked him on the matter. Senior prosecution lawyer Anton Steynberg also spoke on the issue as he responded on Friday to the defence submissions on their "no case to answer" motions.
Nderitu said that the emphasis at this stage of the trial was not on proving the facts of the case, except if the evidence presented was beyond belief.
"We are saying that the threshold that is required at this stage is a rather low one for the prosecution to attain."
Nderitu also pointed out that when Trial Chamber V(a) issued its June 2014 decision on principles and guidance on "no case to answer" motions, no one objected to the judges' guidance that the threshold of proof they would be considering would be lower than beyond reasonable doubt. Steynberg, who spoke after Nderitu, also raised this point.
Later Judge Robert Fremr asked Steynberg about his assertion on Tuesday that the prosecution's evidence should be assessed on its quantity rather than its quality. The judge asked how this assertion applied in light of the principle of a fair and expeditious trial provided for in Article 64 of the ICC's founding law. Judge Fremr also asked whether the prosecution evidence's would remain the same or improve if the defence were to present its case.
Steynberg responded that it would not be unfair to ask the defence to present its case if the prosecution's case met the standard the chamber had laid out in its June 2014 decision. He also said that there have been cases where parts of the prosecution's evidence has been weak but has improved when the defence made its case and the prosecution called rebuttal evidence.
A matter that had been pending since Tuesday was whether the defence would stand on its applications for aquittal and rest its case irrespective of what decision the chamber reached on those applications. This matter was raised by Presiding Judge Chile Eboe-Osuji on Tuesday when he observed that this happened in some jurisdictions where "no case to answer" motions were allowed. Judge Eboe-Osuji emphasised that the chamber was not saying the defence was required to stand on its applications, but the chamber wanted to know if that was the case.
On Friday, Sang's lead lawyer, Joseph Kipchumba Kigen-Katwa, said his client had instructed him to wait until the chamber had made its decision before deciding whether to present his case. Ruto's lead lawyer, Karim Khan, said he would also wait until the chamber had made its decision before deciding the next steps he would take.
This report comes from the ICC Kenya Monitor, a project of the Open Society Justice Initiative, which offers monitoring and commentary on the ICC's proceedings arising from the post-election violence that erupted in Kenya in 2007-2008.