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ICC: William Ruto and Joseph Arap Sang.

Summary of events: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang.

7th and 8th April 2011.

Initial appearance hearings took place. The Chamber set the dates for confirmation of charges hearing.

1st – 8th September, 2011 and 21st September – 28th October,2011

Confirmation of charges hearings.

23rd January, 2012

Confirmation of charges.

Mr. Ruto, Mr. Sang and Mr. Henry Kosgey were charged with crimes against humanity: murder, deportation or forcible transfer of population and persecution.

In relation to Mr. Kosgei, the Chamber found that the Prosecutors evidence failed to satisfy the evidential threshold.

24th May, 2012

The Appeals Chamber unanimously rejected the appeal regarding the challenge to the ICC jurisdiction raised by the defence.

9th July, 2012

The trials were set to commence on 10th April, 2013.

This was however postponed on various occasions but finally set to commence on 10th September, 2013.

6th September,2013.

The Prosecutor was granted leave by the Pre-trial Chamber II to appeal the decision rejecting the amendment of the temporal scope of charges against Mr. Ruto and Mr. Sang.

10th September, 2013

Opening of trial.

2nd October 2013

Warrant of arrest was issued against Mr. Walter Osapiri Barasa on charges of corruptly influencing and attempting to corruptly influence a person believed to be a Prosecution witness.

25th October, 2013

The Appeals Chamber set the criteria for absence of an accused from trial.

It ruled that the absence of an accused person from trial was permissible under exceptional circumstances if the accused had explicitly waived his right to be present at trial. The Appeals Chamber concluded that a Trial Chamber enjoyed discretion under article 63(1), which stated that “[t]he accused shall be present during the trial”, but that such discretion was limited and had to be exercised with caution.

13 December, 2013

The Appeals Chamber dismissed the Prosecutor’s appeal related to the temporal scope of the charges. It held that, once the trial had commenced, it was no longer possible to amend or to add to the charges. According to the Regulations of the Court, a Trial Chamber could, during the trial, only modify the legal characterisation of the facts however without exceeding the facts and circumstances described in the charges.

Trial Chamber V (A) Summonses Eight Witnesses to Appear and Requests the Kenyan Government’s Cooperation.

International Criminal Court.

Situation in the Republic of Kenya.

The Prosecutor v. William Samoei Ruto and Joshua Arap Sang.

Judges: Judge Chile Eboe-Osuji, (Presiding), Judge Olga Herrera Garbuccia, Judge Robert Fremr

17th April,2014

Background.

The Prosecution on 28th November 2013 requested the Chamber to order the Registrar, in consultation and cooperation with the Prosecution, to request assistance pursuant to Article 93(1)(d),Article 93(1)(l) and Article 99(1) of the Rome Statute(the Statute) for the:

  1. Service of summonses by the Government of Kenya on eight witnesses;
  2. Government of Kenya’s assistance in compelling and ensuring  the appearance of summoned witnesses for testimony before the court in the territory of Kenya; and
  3. Government of Kenya to make appropriate arrangements for the security of witnesses until they appear before the court.

The prosecution had identified eight witnesses who had initially provided relevant potential evidence through their witness statements. However according to the Prosecution, these witnesses were no longer cooperative and had expressed that they were no longer willing to testify.

The defence jointly agitated for the rejection of the reliefs sought by the prosecution but alternatively requested the chamber to issue non enforceable summonses inviting the relevant witnesses to appear before the Court. The Defence also requested that the Prosecution discloses evidence, which showed that intimidation, bribery or other improper influence was the proximate cause of witness non-cooperation.

Mr. Ruto’s defence further submitted that the Government of Kenya was under no statutory obligation to enforce the summons served and that it could further not seek to compel witnesses to appear before the Court. The Government of Kenya also added that it had no obligation to enforce the compulsory measure of witness summonses since its domestic implementing legislation, the International Crimes Act, 2008 did not allow any procedure of non-voluntary appearance of witnesses before the Court.

Four questions were placed before the Court for determination:

  1.   Whether an ICC Trial Chamber was competent to subpoena witnesses, as a general proposition, to appear before an ICC Trial Chamber;
  2. whether a Trial Chamber was competent to obligate a State Party to compel a witness to appear before the Chamber further to the Trial Chamber’s subpoena to that witness;
  3. whether a request to Kenya to compel the appearance of a witness was prohibited by Kenyan law or by the Rome Statute operating as part of the laws of Kenya; and
  4.  whether the Prosecution justified the issuing of the subpoena as requested, as a matter of the probative value of the anticipated testimonies.

Subpoena’ or ‘Summons’

Commanding the appearance of a witness who refuses to appear voluntarily.

Rome Statute

Article 4

The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

Article 21(1)(c)

The Court shall apply:

Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

Article 64(6) (b)

In performing its functions prior to trial or during the course of a trial, the Trial

Chamber may, as necessary:

Require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute;

Article 93(1)

States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

  1. The identification and whereabouts of persons or the location of items;
  2.  The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
  3. The questioning of any person being investigated or prosecuted;
  4. The service of documents, including judicial documents;
  5. Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
  6. The temporary transfer of persons as provided in paragraph 7;
  7. The examination of places or sites, including the exhumation and examination of grave sites;
  8. The execution of searches and seizures;
  9. The provision of records and documents, including official records and documents;
  10. The protection of victims and witnesses and the preservation of evidence;
  11. The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
  12. Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

Held:

Majority Decision (Judge Chile Eboe-Osuji, Presiding, Judge Robert Fremr)

  1. General principles of international law including those derived from national laws pursuant to article 21(1)(c) of the Statute offered a basis to place an ICC Trial Chamber in an analogous position as a domestic criminal court. The customary international criminal procedural law also recognized and settled the idea of compellability of a witness for purposes of a criminal trial before an international criminal court.
  2. The Statute had codified the doctrine of implied powers. To that effect, article 4(1) of the Statute provided that the court had international legal capacity. It also had legal capacity necessary for the exercise of its functions and the fulfillment of its purpose.  Legal capacity in the sense of article 4(1) included competence, power, ability and capability.
  3. The principle of implied powers as a general principle of law was ample to justify incidental competence in an ICC Trial Chamber to compel the appearance of witnesses.
  4. The rule of good faith operated in both the performance and interpretation of treaties. This was comprised in the notion of pacta sunt servanda. For ICC, this included the power to require State parties to lend the necessary assistance in compelling the attendance of witnesses using compulsory measures without which, the ICC would be unable to discharge it essential function of conducting judicial inquiries.
  5. International crime trials in domestic courts comprised the power of domestic courts to compel witnesses to appear. This meant that the doctrine of complementarity had to in good faith not put ICC at a weaker stead in conducting such trials. ICC thus had equal ability as domestic courts to sub poena witnesses to appear, as an incidence of the doctrine of complementarity. The doctrine subrogated the ICC into the position of a national court that exercised jurisdiction. Anything less detracted from the ability of the ICC to ensure trial of those accused.
  6. For purposes of compellability, witnesses from situation countries had to be deemed to be under the same legal obligation to appear under an ICC subpoena as they would be if their national courts were genuinely exercising jurisdiction over the case being tried by the Trial Chamber.
  7. No attention was brought to the Chamber of any bonafide law of Kenya that specially precluded an obligation on Kenya to assist the ICC in facilitating compelled appearance of witnesses before a Trial Chamber. This conclusion took into account a careful review of the International Crimes Act of Kenya which regulated the procedure governing its relationship with the ICC; and the reception that the laws of Kenya gave relevant provisions of the Rome Statute to operate directly as part of the laws of Kenya.
  8. 8.     There was no limitation in the International Crimes Act that prohibited Kenya from compelling witnesses in its territory from appearing before an ICC Trial Chamber in conformity with the Chambers sub poena.
  9. The Rome Statute had a direct force in Kenya. This followed from the process of discrete reception or adoption or domestication or incorporation of treaties into domestic law as a deliberate legislative act that was separate from mere accession or ratification of the treaty in question by the executive. Article 64(6)(b) provided for the power of the Trial Chamber to order witnesses to appear , together with article 93(l)(d) which provided for the power of the court to request a State Party to serve out court processes and article 93(1)(l) which empowered the Court to make any other request upon a State Party that was not prohibited by the law of the forum.
  10. 10. Any cooperation request to a State Party had to satisfy the tripartite principles of: relevance, specificity and necessity. Evaluation of necessity was to be in the context of whether to issue summonses to witnesses such that: the witness anticipated testimony was potentially necessary for the determination of the truth; and summons, as a compulsory measure that was necessary in obtaining the testimony of the witness.
  • As to relevance, the testimony of the Eight Witnesses sought by the Prosecution was considered relevant to the case and the crimes charged.
  • As to specificity, the Prosecution had identified its relief sought with sufficient specificity. The Eight Witnesses were all clearly identified and that each of them was or could be within the jurisdiction of the Kenyan national authorities.
  • The Eight Witnesses’ anticipated testimonies were found to be potentially necessary for the determination of the truth. The information included anticipated testimony regarding: the alleged presence and participation of Mr. Ruto in planning meetings before the attacks; Mr. Ruto’s alleged role in supporting, planning and financing the post-election violence; Mr. Ruto’s alleged inciting statements at the locations where violence occurred; the alleged involvement of named members of the Network in violence occurring at locations charged in the case; how Mr. Sang’s radio show allegedly supported and incited the postelection violence; and descriptions by the perpetrators of violence in locations charged in the case.
  • Regarding the potential hostility of the Eight Witnesses, it was held that, until any witness had been given an opportunity to takethe stand, take the oath and take questions in examination-in chief, it would be speculative to declare the witness hostile. Even then, there was no known wisdom that hostile witnesses were incapable of testifying to the truth under oath.

The Chamber found that justification existed for issuing the requested summonses for the Eight Witnesses.

Dissenting decision (Judge Herrera Carbuccia)

11. Pursuant to Article 93 of the Statute, the Government of Kenya was under no legal obligation to compel a witness to appear before the ICC, either in the Hague or in situ. The International Crimes Act was the applicable domestic law and in accordance with the Rome Statute, its Section 20(1)(a)(vi) also provided for facilitation of voluntary appearance of persons as witnesses or experts before the ICC.

Conclusion.

The Chamber found that;

  1. It had the power to compel the testimony of witnesses;
  2. pursuant to article 93(1 )(d) and (1) of the Statute, it could, by way of requests for cooperation, obligate Kenya both to serve         summonses and to assist in compelling the attendance (before the Chamber) of the witnesses thus summoned;
  3.  there were no provisions in Kenyan domestic law that prohibited that kind of a cooperation request; and
  4. the Prosecution justified the issuance of the summonses to compel the appearance of the Eight Witnesses.

The Chamber did not deem it a prerequisite to make any prior order for purposes of any inquiry whose objective was to discover the proximate cause of witness noncooperation as requested by the defence. The purpose of the exercise according to the Chamber was to search for the truth with specific reference to the crimes charged.

The Chamber by Marjority,

  1. Granted the relief sought in the Summonses Request and Supplementary Request;
  2. Required the appearance of the witnesses bearing the pseudonyms indicated below, as a matter of obligation upon them, to testify before the Trial Chamber by video-link or at a location in Kenya and on such dates and times as the Prosecutor or the Registrar would communicate to them.

Witness 15, Witness 16, Witness 336, Witness 397, Witness 516, Witness 524, Witness 495, and Witness 323;

3.Requested the assistance of the Government of Kenya in ensuring the appearance of the witnesses as indicated above, using all                   means available under the laws of Kenya; the requested and required assistance included, but not limited to the following :

  •  to communicate to the concerned witnesses the Chamber’s requirement of their attendance.
  •  to facilitate, by way of compulsory measure as necessary, the appearance of the indicated witnesses for testimony before the  Trial Chamber by video-link or at a location in Kenya and on such dates and times as the Prosecutor or the Registrar  would  indicate;
  • to make appropriate arrangements for the security of the indicated witnesses until they appear and complete their testimonies before the Chamber.

4. Directed the Registry to prepare and transmit, in consultation with the Prosecutor, the necessary subpoenas to the concerned                   witnesses (with or without the assistance of the Government of Kenya) as well as the necessary cooperation request to the                           relevant authorities of the Republic of Kenya in accordance with articles 93(l)(d), 93(1)(1), 96 and 99(1) of the Statute, in                             accordance with the decision.

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