Wednesday, September 23, 2015


The recent decision by the International Criminal Court (ICC) to allow the prosecution to use prior recorded evidence in the case of Deputy President William Ruto and Joshua Sang and the notification of closure of the prosecution’s that followed soon, raise key issues that go to the core of ensuring that the ICC delivers justice. I say so for two key reasons.
To begin with, the rule of law dictates that as citizens, surrender their sovereign power to the governor. They also agree on certain fundamental rules that the governor must apply while ruling the people. For instance upholding human dignity, treating all people equally under the law and no-one should be condemned unheard. The last rule is central to the ICC debate. The rule dictates that before you condemn a person, you must hear his side of the story first. This is especially important for criminal cases where the prosecution must prove their case beyond reasonable doubt.

When the ICC decided to allow the use of testimony that was recanted, it simply means that the defence will never get an opportunity to challenge the evidence thereof. It means that the Court can go ahead and use such evidence in its determination that the accused has a case to answer yet the defence never had an opportunity to test the authenticity of such evidence through cross-examination. It means that if for instance if the statement says ‘he saw the accused commit the crime’ then that evidence is deemed to stand as it has not been challenged. This is such an affront on justice and even a lay man would concur that the accused will be denied justice. It is also important to note that this rule applies in the same way in commercial, civil, land and family disputes.

The second relates to how the new rule was introduced. In the 2013 amendment to rule 68 by the Assembly of State Parties on prior recorded statements set out strict conditions that must be fulfilled before such evidence is allowed. Central to these conditions is that prosecution and defence were present when the statements were recorded and the statements do not touch on the accused person’s acts and conduct. The preamble to this amendment also provided that new rule was not to be applied retroactively to the detriment of a person under investigation or prosecution. These conditions do not seem to have been met in the decision.

It is on these two limbs that nobody should be condemned unheard and the strict conditions imposed for the application of rule 68 that reveals that the ICC may not necessarily be focused on justice in the matter involving Kenya. However, whatever the ICC wants to prove, it must be done within the four corners of the law. Justice is a double-edged sword, it cuts across all parties to a suit. Unless the Court operates within the framework of the rule of law, it is unlikely to deliver justice. If what the ICC desires to achieve cannot be supported by the law, then the honourable thing is to concede and take it as a learning experience. If they insist on proceeding outside the cover of the law, then the Court will a precedent of injustice and demean its standing as an independent, impartial and fair arbiter of international disputes related to crime.

1 comment:

Stephen Wandeto said...

The Appeals Chamber of the ICC has agreed with my sentiments as expressed in this blog post last year. They ruled in favour of the defence on 12th February 2016. Ultimately the use of recanted evidence goes against the cardinal principles of a fair trial in any jurisdiction in the world.