The prosecution yesterday put up a strong case to have controversial witness statements admitted as evidence in the trial of Deputy President William Ruto and journalist Joshua Sang at the International Criminal Court (ICC).
The Office of the Prosecution (OTP) asked the trial chamber to disregard a private agreement by members of the Rome Statute that a new rule of evidence allowing the admission of such statements would not apply in the ongoing cases.
Prosecuting counsel Anton Steynberg told the court to ignore backroom deals struck by the State parties and only deal with what was contained in the amended rules.
But Ruto and Sang's defence teams objected to the request, saying the witness statements were unreliable and had been been rejected by the owners.
They argued that admitting the recanted statements would be detrimental to their clients as they were tainted with falsehood.
The lawyers were submitting before the chamber during a status conference in The Hague, Netherlands.
The prosecution is applying a newly amended Rule 68 of the Rules of Evidence, to have statements admitted. The amendment was effected during the 12th session of the Assembly of State Parties (ASP) in November 2013.
It allows the ICC to admit into evidence prior statements recorded by witnesses who are not available to testify for whatever reason; they could be deceased or unwilling to testify.
Out of the 42 witnesses listed by the prosecution in the case, only 29 testified. Some recanted their statements claiming they had been influenced to record them. Others refused to testify, citing threats, intimidation and fear of reprisals while those compelled to testify disowned the statements in court.
Mr Steynberg told the chamber there had been evidence of witness bribery, community and political pressure, media interference and attempts to identify them in efforts to subvert justice.
The prosecution wants the statements admitted for their truth and used in making the final decision.
Steynberg told the judges that excluding the evidence en masse would be denying the prosecution's right to have the trial.
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The prosecution said for the court to rule otherwise, it would be admitting it was helpless where parties sought to influence it. The OTP argued any private understanding of the ASP members on the application of the amended rule would be irrelevant to the court.
Steynberg said the ASP should only be involved in the formulation of legislation and the rules while the work of the courts was to interpret and apply them.
The lawyers were taken through a series of questions and intensive engagement by presiding judge Eboe Osuji to justify the legal position of their submissions.
Defence lawyers Karim Khan and Katwa Kigen argued the prosecution was seeking an excuse for their massive failures in the investigations. He denied claims the witnesses had been interfered with by persons acting for Ruto.
The lawyers said the statements had been recorded with the help of persons who had prejudicial interests in the cases.
Khan said where a witness fails to attend court the rule could apply. But if the witness attends and recants his/her statement the rule could not operate.
"Your Honour, it can't be right, we say, for the drafters of this rule to have allowed or wished your Honours to deal with unreliable evidence that is deceitful and that is not to be believed particularly when one of the reasons why the rule is enacted was apparently for efficiency," said Khan.
Kigen told the court that the rules were amended when the case had been confirmed and the trial had advanced. Only two witnesses fall outside the time limit, he submitted. The court will give a ruling before July 17.
