, NAIROBI, Kenya, Jan 12 – In what may amount to choosing between a rock and a hard place, the defence counsel in the case against Deputy President William Ruto and Journalist Joshua arap Sang were on Tuesday hard pressed to confirm that they would not submit evidence should their motion of no-case-to-answer be dismissed and the accused are put on defense.
The defence in their submission seeking to terminate the case at the prosecutor’s level had argued that the standard of proof beyond reasonable doubt should be applied.
This is a standard of proof applied at the conclusion of a trial when the defense has already submitted its evidence.
“In light of the written submissions of the defence urging the chamber to assess the evidence at this level of the standard of proof beyond the reasonable doubt, the inquiry is whether the defence are then prepared to elect or stand upon their submissions and call no further evidence in the case notwithstanding that the chamber may not sustain their no case submissions. That is the reason to ensure that the particular standard of proof beyond reasonable doubt will be the standard that must guide the assessment at this particular stage,” Presiding Judge Chile Eboe-Osuji explained.
Legal experts interpreted Judge Osuji’s direction to mean that the defence teams were being asked to confirm whether in case of a rejection of their motion they will not call their defence with evidence but would instead rely on evidence already on record to establish that the prosecution had failed to prove the guilt of the accused persons.
Senior Trial Attorney Anton Steynberg on behalf of the prosecution on the other hand argued that the standard of proof applicable at the stage was not proof beyond reasonable doubt – but a lower standard of proof.
“All that the chamber is required to determine is whether there is evidence taken at its highest on which a reasonable court could convict not to enquire as to the strength of the evidence presented and not to embark upon issues of credibility and reliability,” he submitted.
Osuji gave the defence teams until Friday within which to clarify the end result of considering the standard of proof beyond reasonable doubt at the application seeking to terminate the case at the prosecutor’s level.
“If the defence have not thought about this they may take their time and think about it and give us their answers when it is their time to make their oral submissions or before close of proceedings on Friday.”
The prosecution was also allowed to file a supplementary brief on the standard of proof to be applied in the motion of no-case-to-answer.
The two parties were asked to explain ‘whether there is a case to answer on the basis of evidence as it stands and a judgment as to whether the evidence as it stands satisfies the requirement of proof beyond reasonable doubt’.
Osuji warned on the dangers of demanding for the standard of proof beyond reasonable doubt at the level of no-case-to-answer motion explaining that it is usually considered at the conclusion of a trial of a criminal case.
“That being the case the experienced defence counsel with the right argument may see little forensic advantage for their case in calling extensive or any evidence at all if indeed they have made a well founded submission of no case-to-answer since any evidence they call maybe used against them,” Osuji explained.
“Such a move does not result in an inference of witness. It amounts to the popular expression that goes – putting the prosecution to the status proof of their case. But this is something to be considered with the greatest care for such a move can be just as hazardous to the defence if they fail to call evidence when the circumstances of the case, when correctly appreciated really recommend that the defence should really call evidence.”
The prosecution on Tuesday presented the court with evidence convincing judges not to terminate the case against Ruto and Sang at the prosecutor’s level.
The court heard that Ruto was the leader of a network organised to carry out attacks in the Rift Valley during the 2008 Post Election Violence in Kenya.
Steynberg further told the court that six preparatory meetings took place with three of them held at Ruto’s home in Sugoi.
The hearings of the motion of no-case-to-answer submissions will continue on Wednesday.