NAIROBI, Kenya, May 27 – International Criminal Court (ICC) Prosecutor Fatou Bensouda has admitted that she has insufficient incriminating evidence against Deputy President William Ruto and journalist Joshua arap Sang.
In her application to ICC judges she argued that five witnesses who had incriminating evidence recanted it after they were intimidated and bribed while the sixth witness withdrew due to similar influences.
“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 application filed on May 21.
In the redacted application, she asked the court to allow her to use statements recorded out of the courtroom.
She specifically wanted the judges to admit initial statements of the six witnesses who she argued that had incriminating evidence key to proving the criminal responsibility of Ruto and Sang.
“The Office of the Prosecutor requests the admission of the prior recorded testimony of the “corrupted witnesses” for the truth of their contents. These comprise written statements and transcripts of recorded interviews, and the annexes thereto,” she said.
Bensouda further explained to the ICC judges that there was a strategy to interfere with witnesses with a clear aim of diluting the prosecution’s incriminating evidence.
She alleged that the people behind witness interference did it on behalf of Ruto and Sang.
“The evidence already on record, together with that presented in support of this application, establishes the existence of an organised and effective scheme to persuade Prosecution witnesses to withdraw or recant their evidence, through a combination of intimidation and bribery,” she explained.
“The evidence establishes further that those responsible for this improper interference were, at the very least, acting for the benefit of the accused,” she said.
The Prosecutor said due to witness interference, the prosecution had no choice but to look for alternative ways of securing incriminating evidence to make her case water-tight.
She based her application on an amendment to Rule 68 which was subject of discussion during the Assembly of State Parties in 2013.
In the Rules of Procedure and Evidence, Rule 68 states that recorded evidence can be accepted under two conditions.
“If the Pre-Trial Chamber has not taken measures under article 56, the Trial Chamber may, in accordance with article 69, paragraph 2, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony,” it states.