Deputy President William Ruto was Wednesday dealt a blow after ICC judges allowed a prosecution request to use evidence earlier given by five hostile witnesses.
The witnesses disowned their original statements which will now be used as evidence against Mr Ruto by the prosecution.
In her request, Ms Fatou Bensouda told the judges of “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 added: “The evidence establishes further that those responsible for this improper interference were, at the very least, acting for the benefit of the accused.”
Popularly known as the Rule 68 application, the decision means Ms Bensouda is free to use statements by witnesses who either recanted or withdrew from testifying.
Presiding judge Chile Eboe-Osuji gave a separate, partly concurring opinion to that of judges Olga Carbuccia and Robert Fremr.
The ICC, however, rejected the use of testimony from a single witness.
ASSIGN EVIDENCE NUMBERS
Subsequently, the ICC registry has been directed to assign evidence numbers to “those exhibits that have not been previously admitted into evidence and to note in the metadata of all the exhibits above that they have been admitted for the truth of contents pursuant to this decision.”
The prosecutor had asked to be allowed to use the statements of witnesses declared hostile after being compelled by the court to testify or withdraw.
She had said that the behaviour of the witnesses had “deprived (prosecution) of a significant portion of the incriminating evidence that it intended to present to Trial Chamber V (A) (“Chamber”) in support of its charges”.
The defence teams of Mr Ruto and Mr Joshua arap Sang had both opposed the application, arguing that the admission of the statements would be prejudicial to their clients.
As such, Ms Bensouda wanted the original statements allowed into evidence to bolster her case against Mr Ruto and former radio journalist Joshua Sang.
In the alternative, Ms Bensouda requested “the admission of the prior recorded testimony pursuant to Article 69 (2) and (4) of the Rome Statute.”
Article 69 (2) and (4) provides that the “court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness.”
RULING A SETBACK
The defence teams had opposed the second request as well.
This latest ruling is a setback to the defence teams as they will not get a chance to cross-examine the witnesses or test the authenticity of the statements, some of which might link the two accused to the planning and execution of the 2007/8 post-election violence.
Instead, it will be left to the judges to decide whether or not to rely on the statements.
The judges said that although the statements were not made under oath, they appear “to have been taken in the ordinary course of prosecution investigations by two investigators, was initialled on each page by the witness, investigators and interpreter and contains both a signed ‘Witness Acknowledgment’ as to its voluntariness, truthfulness and potential use in proceedings before the court and a signed ‘Interpreter Certification’.”
“The Chamber finds this to be adequate to indicate the witness’s acceptance that the prior recorded testimony was true and accurate,” the judges said.
The admission of the statements is expected to move to the Appeals Chamber as the defence teams fight what might potentially be used to convict their clients.
In addition, the admission of the statements will also slow plans by the accused to ask the court to declare that they have no case to answer.