"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."
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."
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 Prosecution`s 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 [1] and Secretary to the Cabinet Francis Muthaura [2]. 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.
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