NAIROBI, Kenya, Nov 20 – The battle to oppose use of prior recorded statements in the case against Deputy President William Ruto and Joshua arap Sang will take centre stage during Friday’s plenary session at the 14th Assembly of States Parties (ASP).
It’s an agenda item that the Kenyan delegation at The Hague had to rally for inclusion as an agenda during plenary.
The controversial Rule 68 which was adopted during the 12th session of the ASP at The Hague in 2013 has been a point of contention after it was employed in the Ruto, Sang case.
However, Kenya and the African Union (AU) have argued that it was not to be used retrospectively.
But civil society groups who have thrown their weight behind the prosecution argue that the amendment to Rule 68 can be applied on ongoing cases the same way Rule 134 was employed in the Ruto Sang case.
Rule 134 which allows trial in absentia for sitting Heads of States has worked to the advantage of Ruto who is exempted from continuous presence in court during the trial of his case.
Rule 68 on the other hand has worked best for the prosecution which was allowed by the Trial Chamber to use prior recorded statements of five witnesses who recanted their evidence.
The defence and AU have appealed to reverse the ruling.
During Friday’s session, Kenya will present its request on an audit on procurement of prosecution witnesses.
A heated debate on witnesses testifying in the Kenyan case was sparked by allegations that the political class from rival parties during the 2008 post election violence procured witnesses to fix each other.
Politicians, some of who claim to have been involved in procuring witness to testify against Ruto, have argued that the ICC case is political.
The defence throughout the case has discredited prosecution witnesses alleging that they were coerced, bribed and coached.
ICC Prosecutor Fatou Bensouda has been persistent in raising concerns over interference with her witnesses. In her opening speech on Tuesday she told the plenary that her office will not entertain any attempts to interfere with witnesses.
The ICC has issued arrest warrants against three Kenyans over alleged witness interfere.
This controversy on ICC witnesses will take the centre stage at the plenary alongside the thorny issue of Rule 68.