Kenya's Ruto wins key ICC witness appeal

12th February 2016, Comments 0 comments

The International Criminal Court on Friday upheld an appeal by Kenyan Deputy President William Ruto and barred the use of recanted testimonies in the crimes against humanity case brought against him.

In what will be seen as a major victory for the Kenyan government and may sound the death knell for the prosecution in its faltering case, judge Piotr Hofmanski said the court had interpreted "too narrowly" the rules on using such evidence.

This was "to the detriment" of Ruto and his co-accused radio boss Joshua arap Sang as his defence team had for example been denied the chance to cross-examine witnesses.

In a unanimous decision "the appeals chamber has decided to reverse the decision that... prior recorded testimony can be used," Hofmanski said.

Ruto, 49, and Sang, 40, face three charges of crimes against humanity namely murder, forcible deportation and persecution arising out of Kenya's disputed elections in December 2007.

Prosecutors say more than 1,300 people died and some 600,000 others were left homeless in Kenya's worst wave of violence since independence from Britain in 1963.

Ruto and Sang deny the charges and Ruto's lawyers have further argued there was no proof that he was behind the bloodshed that rocked the powerful east African nation once seen as a regional beacon of stability.

Their trial opened in September 2013.

"Today's decision is a very big victory for justice," Ruto's defence lawyer Karim Khan told AFP.

ICC prosecutors were in August given permission to use witness testimonies which had been later recanted.

The prosecution has maintained the witnesses had changed their testimonies because they were intimidated or placed under duress.

But the Kenyan government has long argued that the charges should be thrown out in the wake of a similar case against Ruto's erstwhile bitter rival and now Kenyan President Uhuru Kenyatta.

In a major setback for the ICC, prosecutor Fatou Bensouda dropped the charges against Kenyatta last year.

That announcement was the ICC's biggest setback since it was established in 2002, and also came amid allegations of witness intimidation, bribery and false testimony.

In a statement late Friday, Bensouda's office said it "takes note of the decision and is currently studying it".

Ruto's case "is now on life support and may never recover," said Mark Kersten, a researcher the Munk School of Global Affairs at the University of Toronto, about Friday's ruling.

"There is broad consensus that the case against Ruto is rather weak, with or without this ruling," Kersten told AFP.

Under a controversially amended rule of the Rome Statute which sets out the guidelines for the tribunal, judges allowed prosecutors to use the testimony of five witnesses which had been recanted.

But Ruto and Sang's lawyers appealed, arguing the move would breach their rights to a fair and speedy trial.

- Potential to walk free -

On Friday a five-judge appeals bench agreed with the defence, saying the ICC's trial judges committed "legal errors" by allowing the testimony.

But Friday's ruling "will have the potential effect of weakening the prosecution's case and increase the odds of Ruto and Sang eventually walking free," said Aaron Matta, from the Hague Institute for Global Justice.

The decision to allow previously recanted evidence to beef up the case against Ruto had stirred anger in Kenya.

Nairobi has spearheaded a proposal for African countries to pull out of the court, which it accuses of unfairly targeting the continent for prosecution.

National Assembly Majority Leader Aden Duale, who leads the ruling Jubilee party of MPs in Kenya's parliament, welcomed the ruling.

"The ICC appeal chamber has redeemed the credibility of ICC and respect of the Rome Statue," Duale said in a statement.

All but one of the ICC's current 10 full investigations are in Africa, but most have been launched after the countries themselves referring cases to the ICC or because of UN Security Council referrals.

© 2016 AFP

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