The Appeals Chamber of the International Criminal Court (ICC) is set to announce its decision on whether statements five witnesses gave to prosecution investigators can be used as evidence in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
Lawyers for Ruto and Sang have appealed the majority decision of Trial Chamber V(a), made on August of 19 last year, to admit the statements of five witnesses as evidence in the case against their clients. The lawyers filed their appeals last October. The prosecution filed its response in November.
The African Union (AU) Commission filed observations as a friend of the court after the Appeals Chamber allowed it to do so. In an 12 October decision, the chamber, however, did not allow Kenya, Namibia and Uganda to file their observations as friends of the court because the chamber said their observations would duplicate what the AU Commission was going to submit. The Appeals Chamber also noted that the AU Commission was making the submission on the basis of a June 2015 decision by the AU's heads of state and government.
Ruto's and Sang's lawyers have argued seven grounds for appeal in their submissions. The Ruto defence filed their appeal on October 5. The appeal from the Sang defence followed on 13 October.
Originally, the Ruto defence had raised 11 grounds for appeal when it applied on 26 August to Trial Chamber V(a) for leave to challenge its decision before the Appeals Chamber. The Sang defence raised 10 grounds for appeal in its August 25 application to Trial Chamber V(a). On 10 September, the chamber allowed them to appeal its decision but reduced and merged their reasons for appealing to seven.
The defence's grounds to appeal can be grouped into three sets of arguments. The first is whether the majority in the 19 August trial chamber decision was correct to apply Rule 68 of the Court's Rules of Procedure and Evidence to allow those witness statements as evidence. The second set of arguments is that irrespective of whether Rule 68 applies in this case, the trial chamber used the wrong standard of proof to allow the witness statements to be admitted as evidence. The third set of arguments is that even if Rule 68 applied in this trial, the witness statements in question did not meet the criteria set out in the provisions of Rule 68 that the trial chamber relied on to admit them as evidence.
Both defence teams have argued that the majority of Trial Chamber V(a) erred in using Rule 68 in its current version because it includes amendments made after the trial of Ruto and Sang had started. The trial began in September 2013 and Rule 68 was amended in November 2013. The trial chamber used the amendments to Rule 68 to allow the admission of the statements of the five witnesses as evidence.
The Ruto and Sang defence have argued the trial chamber is retroactively using those provisions and, in their view, this is not allowed in the Court's founding law, the Rome Statute. The defence have argued that Article 24(2) and Article 51(4) of the Rome Statute do not allow its provisions to be used retroactively to the detriment of an accused person. Sang's defence argued further in its appeal that during the negotiations to amend Rule 68 in November 2013, state parties agreed that the amended Rule 68 would not apply in the trial of Ruto and Sang. This is the defence's first ground of appeal.
The second set of arguments the defence have argued is that irrespective of whether the amended Rule 68 applies in this case, the trial chamber used the wrong standard of proof to allow the witness statements to be admitted as evidence.
Rule 68 has a provision that allows a witness's statement to be admitted as evidence in a trial if there is evidence that that witness was interfered with. In their appeals, both the defence of Ruto and Sang have argued the evidence that a witness has been interfered with should meet the beyond reasonable doubt standard. They also argued that the trial chamber did not provide a clear standard when evaluating the prosecution's evidence of witness interference. The defence said this was a deficiency considering this was the first time the amended provisions of Rule 68 were being used in a trial.
The third and final set of arguments the defence have made is that even if Rule 68 applied in this case, the witness statements in question did not meet the criteria set out in the provisions of Rule 68 that the trial chamber relied on to admit them as evidence. The defence have argued that the statements the witnesses gave prosecution investigators are unsworn and therefore cannot be "previously recorded testimony" as provided for in Rule 68.
The defence said that four of the witnesses did testify in court and recanted their statements in court. The defence said this is another reason their statements cannot be admitted as evidence using Rule 68. They said the trial chamber erred in determining that the witnesses had failed "to give evidence in a material aspect", and yet the witnesses testified in court and recanted their statements.
The defence further said in its appeals that the witnesses' entire statements should not be accepted in evidence. They said as four of the witnesses testified in court, only those parts of their statements they testified on in court should be admitted as evidence.
The defence also challenged other criteria in Rule 68 that the trial chamber used to admit the statements as evidence, including the trial chamber's assessment of the indicia of reliability of the statements and the assessment of whether admitting those statements served the interests of justice.
In conclusion, the Ruto defence have asked the Appeals Chamber to reverse the 19 August decision of Trial Chamber V(a) and, where relevant, refer the decision back to the trial chamber to make further determinations. Sang's lawyers have simply asked the Appeals Chamber to reverse the trial chamber's decisions and determine that the statements of the five prosecution witnesses are not admissible as evidence against their client.
The prosecution responded to both appeals in a consolidated response filed on 3 November. The prosecution challenged all seven grounds of appeal, referring often to the reasons the majority of Trial Chamber V(a) gave in support of their 19 August decision. In their response, however, the prosecution spent more than half of their 96-page submission arguing why Rule 68 applied in this case and that the trial chamber used the correct standard of proof in evaluating whether the witnesses had been interfered with. The prosecution has asked the Appeals Chamber to dismiss the appeals.
Charles Chernor Jalloh, in his submission on behalf of the AU Commission, referred to transcripts of the Assembly of State Parties of November 2013 to show that Kenya, Nigeria and South Africa accepted amendments to Rule 68 on the basis that those amendments would not be used retroactively in cases that were ongoing at the time. Jalloh, however, said it was not clear whether it was the ICC prosecutor or a court official who gave that assurance. In his observations to the Appeals Chamber, Jalloh said it is up to the chamber to validate to "a legal certainty" who may have given such assurances. In his observations, Jalloh said that applying Rule 68 as amended in 2013 in the trial of Ruto and Sang would be detrimental to their fair trial rights and urged the Appeals Chamber to consider that in its decision.
Judge Sanji Mmasenono Monageng, who is a member of the Appeals Chamber, asked on16 September of last year to be excused from hearing this particular appeal. Judge Monageng wrote to the ICC Presidency, explaining she had been involved in discussions leading up to the adoption of the amendments to Rule 68, and those discussions could be construed as having a bearing on the appeal. She said she was aware of news articles alleging that court officials had given assurances that the amended Rule 68 would not be applied to the Kenyan case. She said she considered those allegations without foundation or merit, but she thought it would be best if she was not involved in the appeal.
The ICC Presidency accepted her request not because they were concerned with any bias on the part of Judge Monageng but because they were concerned with the "appearance of grounds to doubt her impartiality."
Judge Monageng was replaced on the Appeals Chamber by Judge Peter Kovacs. The Presidency of the ICC is composed of Judge Silvia Fernández de Gurmendi (President), Judge Joyce Aluoch (the First Vice-President), and Judge Kuniko Ozaki (the Second Vice-President).
The Appeals Chamber is scheduled to announce its decision in open court on Friday at 16:30, The Hague time.
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.