The Rules of Engagement for the Ruto/Sang Trial

The Trial chamber asked the parties in the Ruto/Sang case to give submissions by July 3rd on the conduct of the upcoming trial. These submissions were on:-

  1. Intention to make an opening statement and any special requirements to facilitate this.
  2. The Prosecutor’s schedule of her first 10 witnesses.
  3. Defence submissions on the time required to cross-examine.
  4. Whether the Defence or Prosecutor objects to certification before trial that the accused read and understood the DCC. These parties will also need to indicate if they object to the charges being read out to the Defendant at the beginning of the trial.
  5. Whether the court should allow a motion of ‘no case to answer’ after the prosecutor finishes presenting her case (before the Defence begins it’s own case). Such a motion would request the court to dismiss one or more counts before the Defendants begin their case.
  6. Possible self-incrimination by Prosecution witnesses. (Several witnesses are alleged to have taken part in the crimes charged).
  7. In-court protective measures for any Prosecution witnesses
  8. The timing and order in which Parties will question witnesses
  9. The procedure for questioning (advance notice of introduction of new material and objections thereto)
  10. Procedure for admission of materials (exhibits) through witnesses.
  11. Other methods of admitting materials into court record.
  12. Matters specific to the Victims representative such as the order and timing of the Common Legal Representative’s questions to witnesses, manner in which CLR will request to question a witness.

The Prosecutor replied, expressing (among many other things) that she would be happy to follow procedures laid down in previous completed trials (the Lubanga trial and the Katanga trial). She expects to make a 90 minute opening statement, and will call her first ten witnesses in the following order: P087, P0452, P0185, P0464 (EXPERT WITNESS), P0326, P0189, P0438, P0376 and P0410.

The Prosecutor also noted that some of her witnesses (P0015, P0016, P0024, P0028, P0323, P0356, P0534) might give self-incriminating evidence and thus the court will need to address this should the issue arise during testimony.

The Ruto defence replied, noting that it was too early for it to give a list of its opening witness- in a sense the defence wants to see how the final Prosecution case shapes up before deciding whether and in what order its own witnesses will appear. The Defence also wants to make submissions on the Prosecutor’s full witness list because it believes certain witnesses may have ‘concocted’ their accounts and therefore, having them appear sequentially lessens the time they may have to confer or change their accounts based on any testimony that they may hear before each takes the stand.

The Ruto Defence also wanted to be allowed to submit a ‘no case’ to answer application at the end of the Prosecutor’s case. Such applications allow a court to dismiss one or more charges before the Defence begins its case. They are usually only successful if the Prosecutor’s case is so weak that no reasonable court could convict the accused. Even if such an application is successful, it is not the same as an acquittal; the Prosecutor could in theory charge the accused at a later date under the same charges. But in practice Prosecutors usually cut their losses and focus on the remaining charges.

With regard to the order of questioning, the Ruto Defence also wanted the Prosecutor and Common Legal Representative to finish asking questions before the defence begins its cross examination.

The Defence also wanted to be able to object to admission of any item of evidence from the point of notification up to the point of admission- this leeway, they argued, is necessary because of the amount of material they’re processing and the fact that defence investigations are still ongoing.

During cross-examination, the Ruto defence wanted parties to be able to confront the witness with any document already in evidence- they also want the principle that the Defence should have the final word in questioning a witness upheld.

Other issues dealt with in the Ruto submission include procedures for introducing evidence through witnesses, transcripts of audio-visual materials, introducing non-witness related evidence through the ‘bar table’, and how the CLR should request permission to question a witness.

The Sang defence informed the court that Joshua Sang will make an unsworn statement at the beginning of his trial. The unsworn statement is a right of the defence, but because the Prosecutor cannot cross-examine Sang on his statement (and he is obviously not under oath when giving the unsworn statement), it tends to carry lower probative value than if Sang himself takes the stand as a witness under oath during the trial.

The Sang defence also wanted some indication of the order of Prosecution witnesses- such as whether they will be linked according to crime, geographical area, expert/fact witnesses. They generally expected to use the same amount of time cross-examining as the Prosecutor will use in the examination-in-chief (where the Prosecutor puts forward her witnesses and asks them questions).

The Sang defence did not object to Sang certifying prior to trial that he has read and understood the charges against him. They were also fine with the counts section of the DCC (where the specific crimes alleged- Murder, Deportation/Forcible Transfer, Persecution- are set out) being read in open court.

Sang agreed with the Ruto defence that no case to answer applications should be allowed after the Prosecutor finishes her case.

The Common Legal Representative indicated to the Chambers that he will make an opening statement at the start of the trial that will last about 4 hours; he will also use audio-visual material. The CLR may also present some evidence on behalf of victims. Furthermore, the CLR asks that prior recorded testimony not be admitted unless the witness to whom it relates is either dead, cannot be found, or cannot be brought to court without considerable expense or delay.

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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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