AU urges Hague court to overturn ruling on recanted evidence
In a filing dated Monday by US-based lawyer Charles Chernor Jalloh, the AU Commission argues that the Trial Chamber judges erred in the application off Rule 68 in their ruling.
The commission said the application of the rule had placed the rights of Mr Ruto and his co-accused Joshua arap Sang in “detriment”.
Prof Jalloh, basing his argument in the spirit that led to the adoption of Rule 68, which has now become contentious, cautions that the ruling, if upheld, would lead for further complications and delay in the case.
He argued that the AU never intended, in its adoption of the new rule, to have it used against leaders from the continent who are facing cases at The Hague.
“The explicit message in this text should be self-evident. It affirms in plain language that States Parties in their wisdom never aimed to pass the cost of any rule change on to the unsuspecting African accused presently before the Court, in naked violation of core statutory provisions,” he said.
The AU argued that as a key member to the adoption of the controversial rule, it was now urging the Appeal Chamber Judges Piotr Hofmanski, Silvia Fernandez de Gurmendi, Christine Van den Wyngaert, Howard Morrison and Peter Kovacs to reverse the decision.
“AUC respectfully invites this Chamber to rule that the Impugned Decision’s application of amended Rule 68 to the present case would be retroactive, detrimental to the accused and in contravention of the ICC Statute as well as the legitimate expectations of African States Parties in the 12th ASP Session,” he said.
The AU sought to be allowed to submit a written submission to the court, as a friend, to clarify circumstances under which Rule 68 was adopted and the legal confines in which it has to be applied.
Last week, the Appeals Chamber granted the AU permission to file submissions as it rejected similar requests from Kenya, Uganda and Namibia.
The continental body, whose 34 members have ratified the Rome Statute that established the ICC, was irked by the Trial Chamber ruling allowing the prosecutor, Ms Fatou Bensouda, to use recanted testimonies of hostile witnesses in the Ruto case.
In his filing, Prof Jalloh accuses Trial Chamber judges Chile Eboe-Osuji, Robert Fremr and Geoffrey Henderson of applying the rule retroactively against the agreement during the Assembly of State Parties (ASP) meeting in 2013.
“In deciding to accept the use of the challenged evidence, the Trial Chamber’s Impugned Decision found as a matter of law that application of new Rule 68 was not retroactive. The AUC respectfully urges this Chamber to reverse this mistaken impression of the law.
“The need for a correction should not be understated given all the implications of such an interpretation for other current ICC cases involving other African nationals outside of the Kenya Situation,” he said.
The AU argued that prior recorded statements were supposed to be allowed in a situation where they would assist to prove the matter in question away from the conducts of the accused or when the testimony belonged to a witness who has since died.
The statements could also be used if they are from “a person who has been subjected to interference.”
The aim, he argued, was to speed up the trial of the case and to ensure that witnesses were not interfered with, he argued.
Referring to the proceedings before the ruling on recanted evidence, Prof Jalloh argued that Ms Bensouda sought to use the withdrawn statements when she was dissatisfied with some of the witnesses who appeared in court only to contradict their testimonies.
But he warned that should the statements be allowed, the judges would be faced with counter arguments by defence lawyers, a situation which will lengthen the proceedings.
The AU is planning to have application of Rule 68 reviewed at next month’s ASP meeting.