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.
But that can happen only ‘if the witness who gave the previously recorded testimony is not present before the Trial Chamber’ and that ‘both the Prosecutor and the Defence had the opportunity to examine the witness during the recording’.
Secondly, Rule 68 can be applied ‘if the witness who gave the previously recorded testimony is present before the Trial Chamber’ and that ‘he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the Defence and the Chamber have the opportunity to examine the witness during the proceedings.’
In response to the prosecutor’s application, Attorney General Githu Muigai on Wednesday sent an application to Trial Chamber V (a) asking to be allowed as amicus curie to explain circumstances under which Rule 68 was amended.
“We sought leave to intervene in an application we sent today. We are waiting for a decision so that we can make a substantive application intended to explain what was happening when the rule was amended. The common understanding was not to be applied retrospectively i.e. on the current cases,” he told Capital FM News.
The trial against Ruto and Sang commenced on September 10, 2013 and so far 29 witnesses have testified before the court.
It was unclear if the 30th witness who failed to show up on many occasions will still testify or not.
Trial Chamber V (a) which is hearing the case against the two, summoned nine witnesses to testify after they said they were no longer willing to testify.
After the summonses to appear, some of them agreed to testify but recanted their evidence while others stood by their initial statements and alleged that they had been intimidated to recant their evidence.
Those who recanted were declared hostile for diverting from their initial testimonies.
Ruto and Sang are accused as in-direct co-perpetrators who planned attacks in the Rift Valley during the 2007-8 Post Election Violence.
