Recent Jurisprudential Developments at the ICC on Retroactivity and the Admissibility of Evidence in the Case against William Ruto and Joshua Sang
International criminal trials often take place in politically charged environments, especially if they concern political or military leaders and address violence between different ethnic communities. The trials at the International Criminal Court (‘ICC’) that deal with the post-election violence in Kenya in 2007-2008 are no exception. While charges against Uhuru Muigai Kenyatta, now President of the Republic of Kenya, were dropped by the Prosecution, the trial against William Samoei Ruto, now Deputy President of Kenya, and Joshua Arap Sang, a former radio host, remains ongoing. In Kenya, these criminal proceedings before the ICC have been politically controversial, and a hotly contested topic of conversation amongst civil society and in the media.3 After Kenyatta and Ruto rose to power in 2013, tensions increasingly mounted between the Kenyan government, which was backed by the African Union, and the ICC concerning the admissibility and the conduct of the criminal proceedings against sitting heads of state.4 In such a context, where the case is mired in tremendous political controversy, it is imperative that the independence and impartiality of the adjudicating body be beyond dispute.5 Yet, the truth-finding function and the fairness of the trial proceedings in the case against Ruto and Sang were put to the test when allegations were made about deliberate witness interference, reportedly leading to witnesses’ non-cooperation, withdrawal, and revocation of their earlier recorded, incriminating statements.
In anticipation of the Trial Chamber’s decision on a controversial mid-trial motion, this report offers a close analysis of the key legal and procedural issues raised throughout the proceedings on the admissibility of the prior recorded statements in the case against Ruto and Sang. It explains in detail the submissions by the parties, the reasoning by Trial Chamber V(a) in its decision of 19 August 2015, and the judgment issued by the Appeals Chamber on 12 February 2016. The concluding section analyzes the impact of the judgment of the Appeals Chamber on the case. The report draws mainly on an analysis of the submissions, the relevant decisions by the Trial Chamber, the judgment and pertinent decisions by the Appeals Chamber.14 It has to be noted, at the outset, that much factual information on the testimony of the concerned witnesses and on their alleged corruption was treated as confidential by the parties and the Court,15 and thus could not inform this study.