Termination of Ruto and Sang case at the ICC: Witness tampering means impunity prevails over justice again

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(The Hague, Paris, Nairobi) Judges at the International Criminal Court (ICC) have determined that the evidence is not sufficient enough to lead to the conviction of Kenyan Deputy President William Ruto and Joseph arap Sang. They have therefore decided to terminate this case relating to crimes against humanity allegedly committed in Kenya in 2007-2008, specifying that this does not preclude new prosecution in the future. FIDH and KHRC deeply regret this decision and note that this is the third case relating to the post-election violence in Kenya which has failed while being permeated with alleged systematic tampering with witnesses.

"We deplore that the unprecedented interference with important prosecution witnesses played a significant role in the lack of sufficient evidence presented to support the charges against the accused. The persisting impunity in Kenya prevails over accountability and continuously fails the victims of the atrocities committed during the post-election violence."

Karim Lahidji, FIDH President

Mr Ruto and Mr Sang were accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in Kenya in the context of the 2007-2008 post-election violence which resulted in at least 1133 deaths, 900 cases of sexual and gender based violence, 663,921 displaced persons, numerous victims of grievous harm and destruction of property.

The decision follows the judgment of the Appeals Chamber which reversed the previous ruling of the Trial Chamber that had allowed as evidence, the use of initial testimonies of witnesses, who later either changed their statements or refused to cooperate. This was on the basis of the amended Rule 68 of the Rules on Evidence and Procedure. The Appeals Chamber held that given that the Rule was amended only after the case began, it was applied retroactively and to the detriment of the accused since it would admit incriminatory evidence against the accused. The reason why the Prosecutor sought to admit the testimonies was that a number of witnesses, after giving their initial testimony, stopped cooperating due to threats, intimidation, bribery or fear of reprisals. Social media and blogs have also been used to expose the identities of the prosecution witnesses.

"The systematic witness tampering and intimidation experienced in the Kenya cases has denied thousands of victims of the post-election violence the justice they rightfully deserve. This is even more deplorable in light of the fact that victims of these atrocities have not obtained any adequate redress at the national level but have instead been subjected to a series of broken promises."

Andrew Songa, Programme Manager at KHRC

The ICC issued two arrest warrants, in 2013 and 2015, against three Kenyans, on charges of witness tampering in the case against Ruto and Sang. The Trial Chamber has identified an “element of systematicity” in the interference of several witnesses, suggesting that they were methodically targeted in order to hamper the proceedings. In addition, a person whom the Ruto defence claimed to be a defence witness was murdered in early 2015. The outcome of investigations into his death have not yet been made public.

Systematic witness tampering led to the Prosecutions decision to withdraw charges against two other accused charged with crimes against humanity in the context of the post-election violence in Kenya- Kenyan President Uhuru Kenyatta[[[Statement->https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-05-12-2014-2.aspx] of the Prosecutor of the International Criminal Court, Fatou Bensouda, [on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta->https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-05-12-2014-2.aspx], 5 December 2014; see also: FIDH statement, [Kenyatta case dropped, impunity prevails in Kenya->https://www.fidh.org/IMG/article_PDF/article_a16602.pdf], 8 December 2014.]] and Secretary to the Cabinet Francis Muthaura[[[Statement->https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/OTP-statement-11-03-2013.aspx] by ICC Prosecutor on the [Notice to withdraw charges against Mr. Muthaura->https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/OTP-statement-11-03-2013.aspx], 11 March 2013.]]. The Prosecutor stated that the concerted and wide-ranging efforts to harass, intimidate and threaten witnesses caused key witnesses to withdraw or change their testimonies, and several people who may have provided important evidence were too terrified to testify. |{{{Background }}} For more information on the situation in Kenya and evolution of the cases, see the [FIDH-KHRC timeline->https://www.fidh.org/en/region/Africa/kenya/kenya-cases-at-the-icc-understanding-rule-68-controversy-through-15]: [Kenya Cases at the ICC: Understanding Rule 68 Controversy through 15 Dates->https://www.fidh.org/en/region/Africa/kenya/kenya-cases-at-the-icc-understanding-rule-68-controversy-through-15]. For more information on Rule 68 of the Rules on Evidence and Procedures see: [FIDH-KHRC Q&A on ’Rule 68’ and Witness Tampering->https://www.fidh.org/en/region/Africa/kenya/the-kenya-cases-at-the-international-criminal-court-q-a-on-rule-68]. {{Onno case to answer` motion:}}

There is no explicit provision setting out the applicable legal standard for a ’no case to answer’ motion before the Court. A ’no case to answer’ motion pleads that there has been insufficient evidence, or ’no case’, presented which could reasonably support a conviction.

The primary rationale underpinning the hearing of a ’no case to answer’ motion - or, in effect, a motion for a judgment of (partial) acquittal - is the principle that an accused should not be called upon to answer a charge when the evidence presented by the Prosecution is substantively insufficient to engage the need for the defence to mount a defence case.

The ICC Trial Chamber made a distinction between the determination to be made at the halfway point of a trial, such as a “no case to answer” motion, and a decision on the guilt or innocence of the accused at the end of the case. “Whereas the latter test is whether there is evidence which satisfies the Chamber beyond a reasonable doubt of the guilt of the accused, the Chamber recalls that the objective of the ‘no case to answer’ assessment is to ascertain whether the prosecution has lead sufficient evidence to necessitate a defense case, failing which the accused is to be acquitted on one or more of the counts before commencing that stage of the trial.” [1]|

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