Following the decision of the ICC Appeals Chamber not to allow prior recorded testimony in the Ruto and Sang case, The Hague Trials Kenya put a number of questions to Dov Jacobs, an assistant professor of law at Leiden University.
Q: Can you explain what happened today in the Courtroom?
In what turned out to be quite a short judgement, the Appeals Chamber decided first of all that Rule 68 of the Rules of the Rules of Procedure and Evidence that was amended by the Assembly of States Parties was applied retroactively by the trial chamber. And second of all, it was applied retroactively to the detriment of the accused, and therefore reversed the trial chamber decision. That's in a nutshell what happened. The background to this ruling is that a number of prosecution witnesses recanted their testimony when they came to testify. The prosecutor tried to use the new Rule 68 to bring into evidence their prior testimony, where they had said different stuff. So he told the Court , "listen a few years ago they had said something different, and I'd like to bring into evidence what they said a few years ago, which is detrimental to the accused". And the trial chamber admitted the evidence. And so what the accused were saying is that this application of the rule came after the trial had started and it shouldn't be allowed.
Q: What are the implications of this ruling?
It means all the evidence that the prosecutor was allowed to bring in is now off the record basically, which means that the testimony of those witnesses who did not say anything against the accused stands. And the prosecutor is not allowed to bring in any evidence that they had lied or they had changed their mind. So this is quite positive from the defence perspective and very negative from the prosecution perspective. This is a big blow for the prosecution in this case.
Q: What chances does the prosecution now have to win the case?
It's difficult to tell because, as you probably know, there are two motions of no-case-to-answer being considered right now. No-case-to-answer is basically an opportunity for the defence, after the prosecution has finished presenting its case to say "there is nothing there. We don't even need to present our own evidence because based on what the prosecution brought forward, he has not proven anything beyond reasonable doubt." So it's a way to end the trial immediately rather than go through all the defence. A lot of the evidence is confidential, redacted, so it's very difficult to know exactly what kind of evidence the prosecution thinks it has to win this case.
Q: But you think this ruling can have an effect on the pending decision on the no-case-to-answer motions?
Yes, it means that any evidence which the prosecutor brought in to try and strengthen its case based on Rule 68 cannot be considered. So the reason the prosecutor wanted to bring in the evidence is that the evidence it had wasn't strong enough. The question is: is it strong enough to go forward as a trial or not? This is something I cannot evaluate at this stage. But it means that the prosecution believes its evidence is not solid enough or not as solid as it could be.
Q: What are the chances, do you think, that the Kenyan PEV victims will get justice now?
It depends what you call justice because obviously justice is the fact that the system worked. So if the prosecution does not prove its case beyond reasonable doubt and someone is acquitted, then that's justice by criminal law standards. The question you're asking, which relates more to what kind of mechanisms are set up in Kenya, etc., but it's a broader question than the International Criminal Court.
Q: Did Kenya's lobbying at the ASP have anything to do with this result?
Probably not because the Appeals Chamber also found that whatever was said at the ASP was not relevant. So, the defence argued that at the ASP, there was an undertaking that the rule would not be retroactive, and the Appeals Chamber actually refused this political argument. So I don't see any indication that any lobbying at the ASP had an influence on the legal reasoning of the judges.
Q: Does this set a precedent for the use of recanted evidence in future possible cases?
No because the key here is retroactivity. So any trial that started after the new rule was adopted, the new rule will apply. So the whole issue of it applying retroactively to the detriment of the defence would not apply. It would just be applied.