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.
