ICC judges yesterday said ‘troubling incidences’ of witness tampering and ‘intolerable’ political meddling led them to declare a mistrial in the last Kenya case at The Hague.
The ruling was met with celebrations from Deputy President William Ruto and journalist Joshua Sang, whose case was terminated.
They did not, however, stop ICC Prosecutor Fatou Bensouda from re-prosecuting the two for the 2007/08 post-election violence at a later date.
The judges said the prosecution has not presented sufficient evidence that could link Ruto and Sang to the crimes they were being accused of. “As there is insufficient evidence to support the individual elements, no reasonable Trial Chamber could conclude the alleged elements prove the existence of the network or the common plan,” the judges said.
Judge Herrera Carbuccia appended a dissenting opinion. In her view, the charges against both accused should not be vacated in the present case as such outcome departs from the legal standard.
“The Prosecution case had not ‘broken down’ and she concluded that there is sufficient evidence upon which, if accepted, a reasonable Trial Chamber could convict the accused,” Judge Carbuccia said.
They said the charges are ‘vacated and the accused discharged from the process, without prejudice to the presumption of innocence or the Prosecutor’s right to re-prosecute the case at a later time’. They said the victims should be invited to express views and concerns in relation to reparation or assistance in lieu of reparations. The ruling followed requests by Ruto and Sang that the judges find there is ‘no case to answer’, dismiss the charges against both accused and enter a judgement of acquittal.
“On the basis of the evidence and arguments submitted to the Chamber, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr, as the majority, agreed the charges are to be vacated and the accused are to be discharged,” the ICC said.
Judge Fremr said he found that there is no case for the accused to answer based on an assessment of the Prosecution’s evidence.
“The Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused. Accordingly, I considered that there is no reason to call the Defence to bring their case or to prolong the proceedings any further,” the judge said.
Fremr said the Prosecution has not presented any evidence upon which he could find that Kalenjin youth were trained in anticipation of the post-election violence for the purpose of attacking the Kikuyu.
“I find that the Prosecution has not presented sufficient evidence upon which a reasonable Trial Chamber could find that the Network acquired firearms or other weapons for the purpose of attacking the Kikuyu and other perceived PNU supporters to drive them from the Rift Valley,” the judge said.
Fremr also said there was no sufficiently reliable evidence that Ruto issued orders or instructions to any of the physical perpetrators who burned or destroyed the properties of Kikuyu or other perceived PNU supporters. Judge Eboe-Osuji also vacated the charges and discharged the accused but declared a mistrial in the case.
“Because it cannot be discounted that the weaknesses in the Prosecution case might be explained by the demonstrated incidence of tainting of the trial process by way of witness interference and political meddling that was reasonably likely to intimidate witnesses,” the judge said.
Fremr added; “Even if Sang’s radio programme did provide one or more of the physical perpetrators with moral support, there is no evidence that shows that he made the relevant utterances for the purpose of facilitating the commission of the charged crimes.”
In his opinion, Judge Eboe-Osuji also discussed several matters including reparations, immunities and elements of the “crimes against humanity” definition.
Fremr and Eboe-Osuji said since they had concluded that the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused, a judgement of acquittal was not the right outcome.
They thus only vacated that charges and discharged Ruto and Sang meaning that Bensouda can decide to re-prosecute the two.
Ruto and Sang were accused of crimes against humanity – murder, deportation or forcible transfer of population and persecution – and their trial kicked off on September 10, 2013.
Through 157 trial days, the Trial Chamber heard the testimony of 30 witnesses for the Prosecution, including two expert witnesses. The judges also admitted into evidence 335 exhibits for the Prosecution, 226 exhibits for the Ruto Defence, and 82 exhibits for the Sang Defence.
At the close of the Prosecution’s case, on September 10 last year, the evidentiary record contained 92 photographs, 27 maps, 77 items of audio/visual material, and over 8,000 pages worth of documentary evidence.
Throughout the trial proceedings, the Trial Chamber rendered over 400 written and oral decisions.