, NAIROBI, Kenya, Feb 12 – The International Criminal Court (ICC) Prosecution suffered another major blow Friday after the Appeals Chamber rejected use of recanted evidence in the case against Deputy President William Ruto and journalist Joshua arap Sang.
In reversing the decision to use the testimony, the judges unanimously agreed that the Trial Chamber admitted application of Rule 68 to the detriment of the accused.
“The Appeals Chamber finds that the application of this rule affected negatively the overall position of Ruto and Sang in the proceedings at hand. The Trial Chamber applied the rule retroactively to the detriment of the accused.”
The appeal judges found that the trial judges committed legal errors in the interpretation of the ‘notion of detriment’ when it applied the rule.
The appeal judges further found that the Trial Chamber erred in its decision to allow the prosecution to use prior recorded statements of the five witnesses as the accused were denied their right to cross-examine them.
“The Appeals Chamber finds that application of the amended rule resulted in additional exception to the principle of orality and restriction to cross-examine witnesses.”
According to the appeal judges, admitting such evidence that is inadmissible could as well disadvantage the accused as it may be used against them.
The judges however said they did not find any documentary support of the claims made by the defence and the African Union when they argued that they were promised Rule 68 would not be used retrospectively.
The judges based their ruling on the rights of the accused and the applicability of the amended rule in an active case to arrive at their decision, which will heavily impact negatively the prosecutor’s case.
ICC Prosecutor Fatou Bensouda in her request seeking to have evidence of the recanting witnesses, said her case against DP Ruto and Sang would be weak without the ‘significant incriminating’ evidence of the witnesses in question.
The focus has now shifts to the major ruling which will determine if the case against Ruto and Sang will end at the prosecutor’s level.
Legal analysts earlier told Capital FM News that rejecting use of Rule 68 in the case against Ruto and Sang would see the court’s credibility among African members states improve.