, NAIROBI, Kenya, Apr 5 – Evidence to prove that a network was established and used to commit crimes in the Rift Valley during the 2007/8 Post Election Violence will be the main consideration when International Criminal Court (ICC) judges decide if Deputy President William Ruto and journalist Joshua arap Sang have a case to answer or not.
According to Nabil Orina, an international law expert, the judges will analyse three elements of the existence of the alleged network which Ruto and Sang are alleged to have used to commit crimes.
- The ICC Prosecutor when asking judges to admit evidence of five recanting witnesses said without their evidence, she would be deprived of 'significant' evidence
- The Appeals Chamber overruled the decision of the trial Chamber depriving the prosecution of crucial evidence
If the judges find that the prosecution has not presented convincing evidence to establish the existence of the network, Ruto and Sang’s membership and how they used the said network to commit the crimes, the case will have no chances of moving to the next level.
In his view, without adequate evidence to sustain the allegation of the network, the case will not have met the threshold of crimes against humanity which has been the main anchor point for the prosecution.
“They have to look at all the elements of the crime, whether the alleged network existed, whether these crimes were committed by the network and if the accused persons were connected with this network – a determination has to be made on all that – whether there is sufficient evidence to put them on defence,” he explained.
During the oral submissions of the motion of no-case-to-answer, Presiding Judge Chile Eboe-Osuji emphasised to the prosecution that it was mandatory it explained and sustained its allegations about the network with evidence.
He asked the prosecution to explain – if without the alleged network, the crimes committed in the Rift Valley would have amounted to a crime against humanity which is the required threshold of the ICC.
Judges in their written judgment will explain if the prosecution established a prima facie case – that warrants the accused persons being put on their defence or if the evidence is inadequate to support and sustain the continuation of the trial as claimed by the defence.
“The standard base the trial chamber is going to apply is whether the evidence that is before the record can reasonably sustain a case, and if it cannot, then it means it’s a determination that the prosecution’s case has collapsed beyond any help and in the end they have to terminate and acquit the accused persons.”
On the basis of the evidence submitted, the judges will terminate the case, “if they find that it cannot on a trial fact sustain a conviction even if the defence were not to say anything.”
The decision of the motion of no case-to-answer will be for every charge of the three facing Ruto and Sang face separately.
Each of them faces charges of murder, forcible transfer of populations and persecution.