Key ICC ruling due Friday on Kenya case

February 12, 2016 8:59 am
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Ruto and Sang are accused as in-direct co-perpetrators who planned attacks in the Rift Valley during the 2007-8 Post Election Violence. Photo/FILE.
Ruto and Sang are accused as in-direct co-perpetrators who planned attacks in the Rift Valley during the 2007-8 Post Election Violence. Photo/FILE.
NAIROBI, Kenya, Feb 12 – The International Criminal Court’s Appeals Chamber will on Friday evening take the floor to issue the long awaited ruling that will determine the weakness or strength of the prosecution’s case against Deputy President William Ruto and Journalist Joshua arap Sang.

The ruling comes ahead of another important ruling that will determine if the court will drop charges against the two accused persons at the Prosecutor’s level, or if they will move forward to mount their defense.

Legal experts say Friday’s ruling is key since ICC Prosecutor Fatou Bensouda had admitted, during her application seeking to have prior recorded evidence of recanting witnesses, that her case will be weak without their evidence.

“As a result, the Prosecution has been deprived of a significant portion of the incriminating evidence that it intended to present to Trial Chamber V (a) in support of its charges,” Bensouda stated in the May 21. 2015 filing.

The Prosecutor further explained to the judges that the five witnesses would have stuck to their primary evidence had they not been “interfered” with.

The court has so far issued warrants of arrest against three Kenyans who are wanted for alleged interference with prosecution witnesses.

Ruto and Sang are accused as in-direct co-perpetrators who planned attacks in the Rift Valley during the 2007-8 Post Election Violence.
They each face three counts of murder, forcible transfer of populations and persecution, charges they both deny instead blaming the prosecution of carrying out shoddy investigations to implicate them.

The landmark ruling on employment of rule 68 of the Rome Statute that allows use of prior recorded statements of recanting witnesses has been a controversial topic in Kenya and among African member states.

Under the umbrella of the African Union, the leaders expressed their dissatisfaction when they were enjoined in an appeal by the defense teams who moved to challenge the decision of the Trial Chamber that allowed use of evidence of the five recanting witnesses.

It was their submission that rule 68, after its amendment during the 12th session of the Assembly of States Parties (ASP), was not to be used retrospectively.

Use of rule 68 in the Kenyan case has been one of the issues that have brushed African member states the wrong way.

Legal experts believe the ruling of the Appeals Chamber will determine future relations between African states and the ICC.

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