The Opening Salvos of the Ruto-Sang Case

Today marked the opening day of the Ruto/Sang case. Each side will make opening statements over the next two days. In fact, this particular case has not had prolonged statements (compared to some international criminal cases in the past) and we could be finished by the end of tomorrow morning. Opening statements are customary at international tribunals, but what in fact goes into good opening lines?

There are no hard and fast rules and judges rarely intervene unless a party really steps over the line and starts giving evidence on behalf of a witness, or grossly distorts the facts alleged. Courts also want to avoid controversial tactics like the late Jacques Verges’ ‘rupture’ technique that sought to put the trial itself on trial.

Since not all parties have finished giving their statements, I will focus solely on what a good Prosecution statement should (in theory) contain:

  1. An opening is more than just a list of the witnesses and the evidence. It is a persuasive story of the Prosecutor’s case theory: What happened? Why did it happen? Why is the Defendant responsible? How can we be sure? Why does the Prosecutor’s version of events make more sense the Defendant’s? What verdict does the Prosecutor request from the court?
  2. The Prosecutor will set out the propositions she needs to prove and explain how she will go about proving them. She will use the opening statement to tell the judges how she expects to win the case.
  3. While the Prosecutor may preview evidence she will present (often through audio-visual material), as a general rule- more honoured in its breach than its observance- the opening statement should not interpret or draw conclusions from this evidence before the court has actually seen or heard it. The Prosecutor should not be telling the judges what weight to give each piece of evidence nor should she make conclusions on the credibility of witnesses. Given however, that witness credibility is a key issue in this case, it’s not surprising that some comment was made on the issue of witnesses changing their stories.
  4. The opening statement must stick closely to the facts alleged in the Document Containing Charges. In addition, every fact that the Prosecutor alleges in her opening statement and which has not already been admitted by the defence needs to be backed up by a witness or some piece of evidence.
  5. Sometimes both Prosecutor and Defendant will try to speak to history with wonderful flights of oratory. These should be kept to a minimum, because seasoned judges won’t pay much attention to the arrival and departure of these flights when they reach judgement later on. The golden rule: make your time count, so stick to the case at hand.

In summary, the opening statement is a preview and road map that each side presents to the judges to guide them through the presentation of the case. The Prosecutor has a slight disadvantage in that she will rarely have a right to reply to the Defendant’s opening statement whereas the Defence will have an opportunity to respond in their own opening to what they hear from the Prosecutor. If, however, the opening statement is well done, the logic of the case shines through. This eases the way into the next stage of trial where the Prosecutor will actually do what the opening statement promised they would do: present the evidence.

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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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