NAIROBI, Kenya, Aug 28 – Whereas Kenya feels that it was duped to support amendment to Rule 68 of the International Criminal Court Rules of Procedure and Evidence on the basis that it would not apply ‘retrospectively’ an international law expert says there was no agreement that it cannot be used in ongoing cases.
Harvard University law professor Alex Whiting says if the Assembly of State Parties (ASP) wanted it not to be applied on ongoing cases, it could have stated so.
“When the ASP adopted the new Rule 68, it did not say that the new rule would not apply to ongoing cases (and it could have said this). Instead, all it said is that under the Statute, new rules cannot be applied “retroactively to the detriment of the person who is being … prosecuted,” he says basing his argument on Article 51(4) of the Rome Statute.
In his view, using the amendment retrospectively does not mean that it cannot be applied on active cases where need arises.
In the ruling, Presiding Judge Chile Eboe-Osuji concurred in part with the majority on application of Rule 68 in the case against Ruto and Sang.
He said even without Rule 68 – which he did not oppose to its application – there should be other provisions of admitting prior recorded statements.
“All three judges found that in this case there was no “retroactive” application of Rule 68 and so no contradiction of any commitment made at the ASP. For this reason, I also do not think that Kenya was “duped” because the judges honoured exactly what was adopted by the ASP,” Whiting argued.
According to Whiting, the judges allowed the prosecution to use prior recorded statements of the five witnesses due to persistent complaints that prosecution witnesses were being interfered with.
“The decision is important because the judges find that there has been witness interference in the case, which the prosecution has been alleging for years.”
The prosecution exhausted its witness list of 29 after the last witness refused to testify. Nine of them had been summoned to testify but not all of them took the stand.
Those who testified after summonses to appear were declared hostile after they diverged from their initial statements, which according to the prosecution was due to interference.
If the appeals chamber affirms the trial chamber’s decision, prior evidence of the five witnesses will be admitted which will advance the case for the trial against Deputy President William Ruto and Joshua arap Sang to continue.
Though Whiting thinks the Appeals Chamber is likely to concur with the decision of the Trial Chamber – if the defence is allowed to appeal, he thinks the statements of the five witnesses may not be that strong and may not even be of great importance when the judges will be making their final determination of the guilt or innocent verdict of Ruto and Sang.
“It’s important to note that even though the Trial Chamber admitted the statements into evidence, it will not necessarily give the statements significant weight or even any weight. In other words, just because the Trial Chamber admitted the statements, it does not mean that they will ultimately be part of the judgment,” he says.
Ruto and Sang have asked for leave to appeal the decision that granted the prosecution to use prior statements of five witnesses.
Both Ruto’s and Sang’s defence teams have argued that rule 68 cannot be applied in ongoing cases.
The Government of Kenya through the Attorney General Githu Muigai has also argued the judges erred in allowing rule 68 to be used in the Kenyan case.
He said, Kenya was asked to support its amendment and was even promised that it would not be applied retrospectively.