Prosecutor Fatou Bensouda has applied to the International Criminal Court (ICC) for the statements of witnesses who have since recanted them or refused to testify to be admitted as evidence against Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
In the April 29 application, Bensouda asked Trial Chamber V(a) to admit the previously recorded statements of as many as 16 witnesses into the court’s record “for the truth of their contents.” She has asked the chamber to also consider admitting into evidence the transcripts of the witnesses’ recorded interviews and other related material. The prosecutor has argued that the reason these witnesses recanted their statements in court or refused to testify was because of “a scheme” to intimidate and bribe them.
“Given the evidence implicating persons acting for the benefit of the Accused in the interference of the Corrupted Witnesses, the interests of justice would be best served by the introduction of their Prior Recorded Testimony into the Court record so as to prevent the Accused from benefiting from crimes against the administration of justice committed on their behalf,” Bensouda stated in the application.
“The very mission of the Court to end impunity would be placed in jeopardy if an accused could evade justice through improper interference with Prosecution witnesses. Denying the Prosecution the remedy it seeks would also send out the wrong message to likeminded persons and encourage them to adopt the same strategy,” Bensouda continued.
Bensouda’s application was originally filed on April 29 as confidential and available only to the Office of the Prosecutor (OTP) and the court’s Victims and Witnesses Unit (VWU). Its 12 annexes are also filed as confidential. Bensouda said in the application that the material in the 12 annexes have been disclosed to the defense teams of Ruto and Sang. A publicly redacted version of the application dated May 21 was posted on the court’s website last week. The public version excludes the annexes.
The prosecutor’s application does not come as a surprise. Since September last year, senior trial lawyer Anton Steynberg had indicated that the prosecution may apply to the court to have statements some witnesses had recorded with the OTP to be admitted as evidence against Ruto and Sang. This followed the chamber declaring several witnesses hostile to the prosecution because during their testimony in court they had departed systematically from statements they had previously recorded with the OTP. Out of the eight witnesses who testified between September last year and January, the court declared five of them hostile to the prosecution.
The five are Witness 604, Witness 495, Witness 516, Witness 637, and Witness 743. Before they were declared hostile, Trial Chamber V(a) ordered they be compelled to testify after the prosecution applied for such orders because the witnesses had either refused to cooperate with the prosecution or recanted their earlier statements. The chamber also ordered Witness 727 to testify before it in March but the witness never showed up. His lawyer said that he was in hiding, fearing for his life. These six witnesses are among the 16 witnesses Bensouda has referred to in her application. To date, 29 witnesses have testified, four of them expert witnesses, in the trial of Ruto and Sang, which began in September 2013.
This application may signal that the prosecution is preparing to close its case because since March only a brief one and a half hour trial hearing has been held. This was on April 13, and it was held entirely in private session. It is not publicly known what was discussed at that last hearing, and no trial hearing or status conference has been scheduled since.
Bensouda has argued that the legal basis for the application is Rule 68 of the ICC’s Rules of Procedure and Evidence. She has asked the chamber to admit the statements, interview transcripts, and related material under subsection 2(c) and (d) of Rule 68. The first provision sets out how a trial chamber may introduce a witness’s previously recorded testimony if the witness is reasonably unable to testify before the court or if that witness is dead or presumed dead. The second provision sets out how a trial chamber may introduce into evidence a witness’s previously recorded testimony if that witness has been interfered with.
The prosecutor noted in her application that during oral submissions on the issue, the defense of Ruto and Sang argued the prosecution could not use Rule 68 because it was amended to include its current provisions after the trial of Ruto and Sang had begun.
The ICC’s membership, the Assembly of State Parties, amended Rule 68 in November 2013. Before it was amended, Rule 68 laid out in broad terms the procedure for admitting previously recorded witness statements and related documents. It did not have provisions covering scenarios such as the death of a witness or the inability of a witness to testify.
Bensouda acknowledged in her application that Rule 68 was amended after the trial of Ruto and Sang began but argued that this amendment was made long before the prosecution applied for the witnesses’ previously recorded testimony be admitted into evidence.
The prosecutor has argued that if Trial Chamber V(a) is not convinced that Rule 68 is a good legal basis for accepting the application, the chamber can accept the application on the basis of Article 69 of the Rome Statute. This article covers how a trial chamber shall receive evidence. The prosecutor has argued that subsections 2 and 4 of Article 69 give the chamber the grounds to accept the application.
In the application, Bensouda has also offered she has called “ample evidence” of “a scheme” by individuals not publicly named to intimidate or bribe the witnesses.
“The supporting evidence is not placed before the Chamber for any purpose which goes beyond a procedural disposition of the present request; specifically, the Prosecution does not intend such supporting evidence to be admitted as evidence against the Accused on the merits of the main case,” Bensouda has stated.
“However, the supporting evidence is probative and relevant for the Chamber’s determination of this application, since rule 68 requires the Chamber to be “satisfied” of the existence of certain preconditions before admitting the Prior Recorded Testimony and this evidence will provide the necessary basis for such conclusion. It should thus be accorded full consideration,” Bensouda continued.
In 15 pages of the 46-page application, Bensouda has detailed some of the allegations of witness intimidation and bribery. All these pages are redacted in the public version of the application. In line with the chamber’s direction, Bensouda has also included in an annex to the application a solemn declaration by the prosecution’s lead investigator detailing how the material being placed before the chamber was collected. Also annexed to the application are other materials that are not already part of the court’s record but relate to the witness bribery and intimidation allegations.
Some of these allegations may have also been heard during the testimony of three witnesses that was held in private session. These are Witness 604, Witness 495, and Witness 516. Each of them was declared hostile to the prosecution. Each of them was also granted partial immunity from prosecution from any offences that involved interfering with, intimidating or bribing witnesses – what in the court’s shorthand are called Article 70 offences. They were not granted immunity from perjury, which is also an offence under Article 70 of the Rome Statute. In exchange, the three witnesses were expected to tell the chamber all they knew about such attempts and their involvement. Trial Chamber V(a) approved this deal and the witnesses’ testimony on the matter was heard entirely in private session.
In the April 29 application, Bensouda said these witnesses “largely denied during their testimony that their withdrawal and subsequent recantation were the result of interference.” To rebut these claims, Bensouda has included material from other prosecution witnesses and potential witnesses. She said that this material shows that “the scheme members” used “essentially” the same modus operandi when intimidating or bribing witnesses who eventually testified or not.
From the prosecution’s application it is clear that Trial Chamber V(a) listened to oral arguments on the issue of admitting previous statements of prosecution witnesses into evidence. Now that the prosecution has filed an application asking for those statements to become part of the evidence against Ruto and Sang, this means that their defense teams will be expected to files responses. The lawyer representing victims will also be expected to file responses. The deadlines are not publicly known because those deliberations took place during a session closed to the public.
Last Friday, the chamber ruled to not allow Kenya’s Attorney General Githu Muigai to file observations on the issue as a friend of the court, or amicus curiae. Muigai had applied on May 27 to be allowed to submit observations as Kenya was party to the negotiations to amend Rule 68 of the court’s Rules of Procedure and Evidence.
Irrespective what decision the chamber makes on this application, the prosecution is nearing the end of its case. Once the prosecution closes its case, the next step will be for the court to listen to any evidence the lawyer for victims may present. This is according to the chamber’s fifth decision on how the trial proceedings will be conducted that was issued on June 3, 2014.
The evidence the lawyer for victims may present to the court will mainly be the testimony of some of the victims affected by the crimes described in the document containing the charges. This stage of the proceedings will only happen if the lawyer for victims has made an application as directed by the chamber in its August 9, 2013 decision. It is not publicly known whether such an application has been made. If the chamber schedules a time for victims to testify, then Ruto will be expected to be in court throughout that time. This is one of the conditions the chamber set when it allowed him to be absent from most of the trial proceedings.