International Criminal Court (ICC) indictees Deputy President William Ruto and former journalist Joshua arap Sang are not yet out of the woods despite victory at the Assembly of State Parties (ASP) that forms The Hague judicature.
Although on Thursday November 26, 2015 the ASP gave Ruto and Sang a lifeline by affirming Kenya’s position that recanted evidence should not be used in trying the duo, judges of the ICC are yet to rule on the matter to validate the decision of the assembly.
A status conference at The Hague is expected on January 14, 2016 where the appeals to have a no case to answer and affirmation of ASP disapproval on the retroactive use of Rule 68 will be discussed.
According to journalist Oliver Mathenge who has covered the proceeding of the ICC since the Kenyan cases were referred to the court, there are three ways a decision by the appeal judges could go.
Firstly, he says the judges can uphold the trial chamber decision which allowed five recanted statements to be used in trying Ruto and Sang in the first place, a decision he notes will likely rouse political rhetoric in Kenya.
“Secondly, the judges can dismiss the trial chamber decision (to mean that the five statements of the recanted witnesses cannot be used) and thirdly, they can send the matter back to the trial chamber where already one of the three judges already said Rule 68 does not apply,” Mathenge notes.
Kenyan political leaders who were leading a spirited fight against the retroactive application of Rule 68 in a statement they issued after ASP fourteenth session welcomed the affirmation of their interpretation of the ICC rule.
“This is a vindication of the principled position of the government of Kenya and a rejection of the position taken by the Kenyan opposition in their letter to the ASP President and certain parties in the NGO community in Kenya,” the statement read in part.
They praised the decision of the ASP where Kenya’s interpretation of Rule 68 prevailed and said “any use of recanted evidence cannot and must not be acceptable or applied at the ICC.”
Kenya’s Foreign Affairs Cabinet Secretary Amina Mohammed praised the ASP for affirming Kenya’s position although most European Union countries who are members of the Rome Statute were opposed to the annulment of the rule arguing it would weaken the independence of the ICC.
In August 19, 2015 the ICC judges made a landmark ruling that allowed Bensouda to use evidence that had already been withdrawn by the witnesses in her case against Ruto.
A total of 16 of the prosecution’s 42 original witnesses had reportedly withdrawn their statements and or refused to testify due to intimidation.
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