1. What is Rule 68?
The admission of evidence is in general governed by article 69 of the Rome Statute. Article 69(2) states that the testimony of a witness at trial shall be given in person subject to the exception based on measures set forth in Rule 68 in the Rules of Procedure and Evidence. This is subject to the condition that the implementation of any such exception is not ‘prejudicial to or inconsistent with the rights of the accused’.
Exception under Rule 68 governs admission of prior recorded testimony, for example the written statements or transcripts of recorded interviews with witnesses, in addition to or instead of testimony in court if the witness is not present before the Trial Chamber. The Assembly of States Parties to the Rome Statute (ASP) amended the rule by consensus in November 2013 to increase circumstances under which the prior recorded testimony can be used.
This amended rule permits the admission of prior recorded testimony if the witness who gave the testimony (i) has subsequently died, or is presumed dead, or (ii) is, “due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally”- providing that the prior recorded testimony has sufficient indicia of reliability. The prior recorded testimony can also be admitted (iii) from a person who has been subjected to interference- relating to the physical, psychological, economic or other interests of the person.
2. Why has Rule 68 been applied in the case against Ruto and Sang?
ICC Prosecutor Fatou Bensouda has applied to the ICC for the statements of 16 witnesses, who have since recanted them or refused to testify, to be admitted as evidence against William Ruto and Joshua arap Sang. The Prosecutor argued that the reason why the witnesses stopped cooperating was because they feared reprisal, or were subject to threats, intimidations, or bribery. Social media and blogs have also been used to expose the identities of ICC witnesses.
The Trial Chamber accepted the prior recorded testimony of five witnesses, and denied the testimony of eleven witnesses. This decision was subsequently appealed by the defence.
3. Has anyone been accused of witness interference?
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 noted an “element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings.” These allegations fall under Article 70 of the Rome Statute. This article covers offences against the administration of justice.
In addition, a person whom the Ruto defence claimed to be a defence witness was murdered in early 2015. Investigations into his death have not yet been public.
4. Why is the applicability of the Rule 68 controversial in the Ruto and Sang case?
Article 51(4) of the Rome Statute prohibits applying rule amendments “retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.”
The Defence argued that given that the case began before the amendments were adopted, applying the amended Rule 68 in this case would be a retroactive application that is detrimental to the accused and would therefore not be allowed.
On the other hand, the Prosecution submitted that applying Rule 68 was not retroactive, as it was not related to testimonies that were recanted prior to the Rule’s amendment. Further, the rule is not inherently detrimental to the accused, as it does not deny any of his rights or duties, and indeed could also be utilised by his defence should the need arise.
5. How did the ICC Trial judges decide on applicability of Rule 68 in Ruto and Sang case?
The Office of the Prosecutor filed a request to admit the prior recorded testimony pursuant to Rule 68 of the Rules of Procedure and Evidence in order to rely thereon to establish the guilt of the accused on 29 April 2015.
In August 2015 the Court ruled on admitting into evidence the prior testimony of five witnesses on the basis of Rule 68. Four witnesses had appeared in court, but recanted testimony on the stand. The fifth witness has disappeared. The judges were satisfied that there had been interference with the witnesses. Trial Chamber said they admitted the recanted statements as evidence because both prosecutors and defense lawyers had the opportunity to question the witnesses about the contradictions between their testimony in court and their previously recorded statements.
The Trial Chamber found that applying the amended Rule 68 would not be retroactive as it was being applied in a forward-looking manner to admit items into evidence. It also held that even if it could be considered a retroactive application, it would not be to the detriment of the defendants because the rule is neutral and could be used by all parties to the proceedings.
The defense appealed the decision. The question whether Rule 68 can be applied in this case in a manner consistent with Article 51(4) and Article 24(2) of the ICC Statute — provisions dealing with retroactivity- is subject to the considerations of ICC Appeals Chamber. Its decision is planned to be made public on 12 February 2016.
6. How has Government of Kenya tried to influence the outcome of the decision?
At the 2015 session of the ICC Assembly of States Parties (ASP) in November 2015, the Government of Kenya presented a proposal to discuss the Court’s handling of the Kenya case and the applicability of Rule 68.
The Kenyan government- which includes Deputy President William Ruto – tried to ensure that Rule 68 would not be applied to Ruto’s case, disqualifying important witness statements against him. Ruto was sworn in as Deputy President in April 2013 as the trial against him was scheduled to begin.
Taking into consideration that this legal issue was already under appeal at the ICC when the Kenyan government launched its campaign at the ASP in 2015, other member countries primarily emphasized the court’s independence and the importance of refraining from discussing judicial matters during the ASP, which is a purely political forum. In particular, it was highlighted that any political discussion at this level could amount to politicizing the Court`s judicial proceedings and to interfering with its judicial decision-making.
FIDH and its member organizations in Kenya and Sudan, the Kenya Human Rights Commission (KHRC) and the African Centre for Justice and Peace Studies (ACJPS) published a joint position paper urging the independence of the ICC, and condemning actions by the governments of Kenya and South Africa for attempting to influence ongoing judicial proceedings within a political forum at the 14th ASP.