Mistakes, Misgivings, Mistrial? The Early Termination of Proceedings in the Case Against William Ruto and Joshua Sang

ICC 2

Kenya

English

On 5 April 2016, the majority of Judges in Trial Chamber (V)(a) at the International Criminal Court (hereinafter “ICC” or “Court”) decided to vacate the charges against William Samoei Ruto and Joshua Arap Sang at the halfway stage of the trial, after the Prosecution had presented its case in full.1 Defense teams argued that the two accused had “no case to answer” (hereinafter “NCTA”), and that both should be acquitted due to the weakness of the Prosecution evidence.2 Two of the three-judge panel agreed that Prosecution evidence was insufficient to continue the trial, but instead of acquitting the accused, the majority chose to vacate the charges “without prejudice” to the possibility of the Prosecution later recharging the accused with the same offenses and beginning trial anew. 3 Each of the three Judges presiding over the case wrote separate opinions, and it is clear from a close reading of the two majority opinions that both Judges were concerned with allegations of widespread witness interference having led to witnesses’ non-cooperation and withdrawal of evidence. Judge Eboe-Osuji, one of the majority Judges, was of the opinion that witness interference so gravely undermined Prosecution efforts that the case merited a declaration of “mistrial,” although no direct link was ever actually established in Court between the accused and known instances of witness interference.4 Had the majority responded to the NCTA motions with the more traditional remedy of acquittal, then the principle of ne bis in idem (or “double jeopardy”) would have protected the defendants from subsequent renewal of charges for the crimes alleged in this case, either before the ICC or a national criminal court.5 However, because of the unusual final disposition of the Trial Chamber on these mid-trial motions, the accused do not enjoy that level of finality, and reprosecution remains an open possibility.

The report draws on an analysis of the publicly available written and oral submissions in the NCTA proceedings, the decision of 5 April 2016, as well as pertinent jurisprudence and literature to contextualize

the Chamber’s findings.8 The aim of this report is to provide an overview and legal analysis of the decision’s less-than-straightforward reasoning. It focuses on the quality of the legal reasoning in the decision of 5 April 2016, without venturing too deep into the broader political context around the case. Since the WSD Handa Center did not conduct trial monitoring throughout the entirety of the trial proceedings and has no access to confidential material, the report also cannot provide any definitive explanation for the factual deficiencies of the evidence that led the Trial Chamber majority to dismiss the

case.