Tag Archives: William Ruto

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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Further Developments in the Ruto/Sang Case

The Prosecutor applied for leave to appeal the Pre-Trial Chamber’s decision rejecting her application to amend the temporal scope of charges. The Prosecutor wanted factual allegations beginning on 30 December 2007 to be included in the charges. Both the Sang and Ruto Defence teams (here and here) object to the application for leave arguing that there is no appealable issue raised, the issues raised would not affect the fairness or expeditiousness of proceedings and a decision by the Appeals Chamber would not advance proceedings.

The Plenary of Judges of the ICC rejected the joint Ruto-Sang Defence application to change court sittings to East Africa (either Kenya or Tanzania). 9 judges voted against changing the place of sitting to Kenya, 5 voted for this option. 9 judges voted against changing to Tanzania, 4 voted against and 1 abstained.

Though none of the majority judges objected to the principle of the request, many were swayed by security concerns for victims and witnesses, by the potential for demonstrations and disruption and some were convinced the cost of holding parts of the proceedings in East Africa were not justifiable. In addition, according to dissenting Judge Eboe-Osuji, some may have been swayed by a late submission by the OTP on the eve of the Plenary decision that seemed to change the OTP position from being in favour of a trial close to the site of alleged crimes to one in which the Prosecutor felt it was not in the ‘interests of justice’ for the trial to be held in Kenya or Tanzania. The judge thought this late submission an ‘ambush’ by the Prosecutor, which gave the Defence no chance to reply prior to the Plenary Decision.

An open letter to the President of the ICC, written by Gladwell Otieno and arguing against holding the cases in Kenya, was the target of scathing words from Judge Eboe-Osuji. The judge noted that Otieno was a petitioner against William Ruto and Uhuru Kenyatta’s election as Deputy President and President respectively.

Here is the Supreme Court Judgement upholding that election as well as the People’s Court website run by, among others, Gladwell Otieno’s organisation. The People’s Court is an attempt to keep public debate about the March 4 Election litigation alive now that the election of Kenyatta and Ruto has been upheld.

Judge Eboe-Osuji felt that whereas Otieno’s letter had allegedly stated concerns about the politicisation of the cases if brought to East Africa, she, in fact, was contributing to the perception of politicisation by her direct involvement in this matter given her prior interest in seeking to nullify the political victory of the accused. It did not help, according to the Judge, that the Prosecutor appeared to have altered her views on the change of venue in a manner that coincided with Gladwell Otieno’s letter.

A change of venue application is also pending in the Kenyatta case; its prospects don’t look promising in light of the reasons the judges gave for rejecting the Ruto-Sang application.

The Trial Chamber rejected the parties’ suggestions for an ‘on-off’ court sitting schedule. However, the judges kept open the door that they may vary this schedule once the Kenyatta case starts.

The Trial Chamber also decided on the disclosure of screening notes of 12 Prosecution witnesses who will not be called at trial. The Court ordered disclosure of the notes to the Ruto Defence in full.

Developments in the Ruto Absence Decision

The Ruto Defence replied to the Prosecutor’s appeal against the Trial Chamber decision allowing William Ruto’s absence from parts of his trial. They argued that the Prosecutor took an incorrect and unnecessarily rigid interpretation of the statute. They also argued that the appeal should not have suspensive effect (freezing the enforcement of the Trial Chamber’s decision until the appeal is heard and determined) because the Prosecutor has not adequately justified her request. The Defence felt that the appeal could be heard quickly enough so as not to jeopardise proceeding. They further pointed to Ruto’s waiver to bolster their argument that suspensive effect is unnecessary.

The Ruto Defence maintained that the majority of the Trial Chamber took the correct interpretation of the Rome Statute according to its object and purpose, whereas the Prosecutor sought a narrow, literal interpretation that isolates each provision of the law. They also wanted the prosecutor’s appeal dismissed on the basis that she exaggerated and  misconstrued the court’s decision, and failed to show any error of law in the judges reasoning.

The Defence also disagreed that Ruto was given preferential treatment due to his position as Deputy President. They argued that the test developed by the Trial Chamber for permitting the absence of an accused revolves around ‘exceptional circumstances’ and thus, although the threshold is high, a number of situations would meet this test, including where a child of an accused was seriously ill. The defence stressed that the test would have to be determined on a case by case basis and that a ‘margin of deference’ should be given to Trial Chambers to ensure a fair trial through such procedural decisions.

The Defence also felt- like Judge Eboe-Osuji, who dissented from the decision granting leave to appeal- that part of the Prosecutor’s argument was largely speculative as to what might happen in the future if the Ruto’s absence created a precedent for other accused.

As a result, the Ruto Defence wanted the Appeals Chamber to dismiss the appeal, dismiss the request for suspensive affect and affirm the decision of the trial chamber. They also asked that the appeal be granted an oral hearing so that the parties can argue their case in court before the Judges of Appeal.

The Appeals Chamber came to a preliminary decision on the matter of suspensive effect and granted the Prosecutor’s request.  The Appeals judges agreed with the prosecutor that given the short time before trial starts and the fact that the Decision might possibly be overturned, the risk that witnesses who testify in Ruto’s absence may be unwilling to do so again later on means that suspensive effect should be granted. If Ruto were to miss hearings, only for the appeal to overturn the original decision, then consequences of having to re-start the case or re-hear crucial evidence would be difficult to correct and may be irreversible if witnesses are subsequently unavailable.

Thus, Ruto would have to be present for trial proceedings while the appeal is heard. Only if the Appeals Chamber uphold the Trial Chamber decision can he begin to absent himself from those hearings which the court permitted him to miss. The preliminary decision also avoided the matter of Ruto’s waiver, holding that this must await hearing of the merits of the appeal, where the Appeals Chamber can properly assess the status and lawfulness of the waiver.

Anti-Hague Escapades Abound

As the trials edge closer, the Anti-Hague Circus is back in town; this time with twin ringmasters Aden Duale, the National Assembly Majority Leader and Kithure Kindiki, the Senate Majority Leader. Both predictably arrive with selective memories about how the ICC became involved in Africa and whether withdrawal from the Hague will actually protect the political class from further intrusion by these pesky International Tribunals. The fact that Kithure Kindiki is also a lawyer for one of the accused makes the awkward situation even worse- the image of the political class reflexively protecting its own looms over all.

Parliament is being recalled (with sitting allowances at public expense) to discuss the ICC, while over 70 MPs are allegedly preparing to accompany the Deputy President (at public expense) on his first court appearance. The reason the public expense is so important is because one of the accused assured the nation months ago that the ICC was a personal challenge for himself.

Yet the ‘personal challenge’ is taking up public time and money that MPs could be using to address immediate matters of public importance- such as the painful hike in the cost of living and the price of milk, both of which are having grave effects upon Kenyan households. Not to mention the recent series of strikes running through the public sector.

The Kenyan courts will also be engaged with yet another ‘urgent’ attempt to prevent the ICC trials of Kenyatta and Ruto- everyone forgets Sang- from proceeding. The petitioners, the National Conservative Forum(??) are arguing that a constitutional crisis and instability will ensue if both the President and Deputy President leave for the Hague trials at the same time.  The Petitioners therefore want the High Court to prevent the President and Deputy President from travelling to the Netherlands.The fact that warnings of such constitutional and administrative problems were given to Ruto and Kenyatta before they chose to run for office does not seem to concern the Petitioners. So far the High Court has merely directed that all parties be served with the application.

 

An earlier petition- the 2010 case of Joseph K Gathungu vs The Attorney General and Others- attempted to block the ICC from allegedly breaching Kenya’s sovereignty by investigating the 2007/08 Post Election Violence and prosecuting Kenyans found to be connected with those events. The petition was thrown out. That time, the petitioners attempted to justify their argument on the basis that the new constitution would cure all ills and so the ICC’s services were no longer necessary- the judge disagreed, pointing out that the same constitution also made the ICC treaty part of the law of Kenya and the procedure under the Rome Statute was for the ICC- not local courts- to determined if it had jurisdiction in the Kenya situation. Kenya, said the judge, was a member of the community of nations and under an obligation to observe international agreements it ratified. The new constitution did not change that- if anything it strengthened the ties binding Kenya to international law.

 

Nowadays, the anti-Hague brigade, having been thwarted in their argument that the ICC breaches Kenyan sovereignty, tend to complain that the March 4 elections were a referendum on the ICC and since the ICC ‘lost’, the trials must stop.

 

Indeed tone of this latest petition by the National Conservatives is eerily similar to a shrill letter by Kenya’s Permanent Representative to the UN. The letter was leaked earlier this year; it warned the UN Security Council that Kenya risked a violent crisis- that would threaten the region- if the Hague trials were allowed to proceed. It also implied that the March 4 election made the ICC trials moot since Kenyans had passed ‘judgement’ through the ballot box.

Now it seems that, having failed to convince the international community (bar friendly local dictatorships) to support the anti-Hague cause through the ‘threat to peace and security’ sledgehammer, the accused’s associates will bludgeon Kenya with the message that national security and constitutional authority is under threat. This questionable foundation would then allow the accused to stand up and defy the Hague, justifying this impunity as a higher calling ‘for the good of the nation’.

There is a small cause for concern because much of the world is pre-occupied with the chemical weapons of Syria. Defiance of the ICC by Kenya may only register as a blip in the radar if military action in the Middle-East is the focus of global attention. Of course, the accused themselves are adamant that they will observe their obligations to the ICC to the letter.

Let’s stay tuned for the next visit by the circus…

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.

The Appeal Against the Decision to Allow William Ruto to be absent from Court Proceedings

The Prosecutor in the Ruto/Sang case sought to appeal the decision allowing William Ruto’s absence from parts of his trial. She applied to the Trial Chamber for leave to appeal because she felt that the Chamber made the following errors:

  1. The scope of the Defendant’s duty to be present at trial and whether a Trial Chamber has a discretion to excuse an accused from this duty to be present.
  2. By stating that the test for such an excusal was that “…In exceptional circumstances […] the
    Chamber may exercise its discretion under Article 64(6)(f) of the Statute to excuse
    an accused, on a case-by-case basis, from continuous presence at trial. […] The
    exceptional circumstances that would make such excusal reasonable would
    include situations in which an accused person has important functions of an
    extraordinary dimension to perform.”

Like the Judge Carbuccia in her dissent, the Prosecutor worried that this decision could create inequality between different accused: some (like Joshua Sang) without important functions that meet the test would always have to be present whereas the more powerful accused (like Kenyatta or Ruto) would almost always be able to negotiate their absence from court owing to the functions that they perform.

The Prosecutor felt that prompt reference of the issue to the Appeals Chamber would move the case forward expeditiously. She pointed out that a similar point must be decided by the Kenyatta Trial Chamber. She also raised the question of whether, after a lengthy trial, Ruto’s absence could be used as a grounds to appeal a possible conviction on the argument that his right and duty to be present was non-derogable and could not be waived either (i) by his choice or (ii) at the court’s discretion. Thus she wants the issue settled before trial so that time and expense are not applied to proceedings that could be nullified much later over the absence question.

The Defence replied to this application by arguing that the Prosecution’s grounds for appeal were speculative, implausible, remote and/or theoretical. The Defence felt that the Prosecutor simply disagreed with the majority decision but had failed to show any appeal-able issue. According to the Defence, the Prosecutor had not shown how deciding the appeal would assist in the expeditious and fair conduct of proceedings. Further, the Prosecutor had misunderstood the test laid out by the court for ‘exceptional circumstances’. According to the Defence, the test had little or nothing to do with the executive functions of the the accused.

The Defence argued that the issue of a possible appeal against conviction does not arise because William Ruto waived his right to appeal on an issue that turned on his voluntary absence from proceedings. Finally, the Defence suggested that the Prosecutor’s argument that this issue could affect other cases before the ICC was a policy argument that could not validly be advanced to support an appeal on an issue specific to this case.

The Majority of the Trial Chamber (Judge Eboe-Osuji dissenting) agreed with the prosecutor that there were appeal-able issues in the application. The judges also agreed that the issues would significantly affect the fair and expeditious conduct of the trial or its outcome; if Ruto were convicted and appealed, the risk existed that parts or all of the trial being nullified because of his absence at certain stages. This would lead to significant delay. Furthermore, conducting the trial with this issue hanging over it would lead to greater uncertainty if there is evidence that was heard while Ruto was absent from court. Therefore, fairness required the Appeals Chamber to review the decision now, before trial gets underway.

Judge Eboe-Osuji dissented because he did not feel the issues raised significantly affected the conduct or outcome of trial in the way the prosecutor was arguing. He appeared to agree with the Defence that the arguments put forth for leave to appeal were largely hypothetical and based on many ‘ifs’, ‘mays’, and ‘possiblys’ which required speculation about what might happen in the event Ruto got convicted. He also felt that the Prosecutor was wrong when she complained that the principle of equality before the law was violated by the test requiring the accused to show ‘exceptional circumstances’ for his absence. The judge felt that the law

Recent Court Documents in the 2 ICC Kenya Cases 25 July 2013

Following the instructions of the court, William Ruto deposited a document waiving his right to be present at his trial at the Hague.

The trial chamber also ruled on the Government of Kenya’s submissions on cooperation. The judges did not go into the merits of the matter, noting that there was no application by the Prosecutor accusing the Government of non-cooperation. They did however ask all parties to submit requests of notification of any applications relevant to the Government (such as a possible application for Non-Cooperation and Referral to State Parties). They dismissed the Prosecutor’s request that the GoK be cautioned for revealing confidential information in its filings because the GoK had already recognised the mistake and apologised.

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

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