ICC: Appeals Chamber Upholds Summonses

[Omollo]

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No surprises here. Where is Mortician Githu's brilliance? Is not ad advocate rated by his successes in court?

Ruto and Sang case: Appeals Chamber confirms Trial Chamber V(a) decision summonsing witnesses to appear
 ICC-CPI-20141009-PR1050
Situation: Republic of Kenya
Case:The Prosecutor v. William Samoei Ruto and Joshua Arap Sang

Today, 9 October 2014, the Appeals Chamber of the International Criminal Court (ICC) dismissed Mr Ruto's and Mr Sang's appeals against Trial Chamber V(a)'s decision of 17 April 2014. With that decision, the Trial Chamber required witnesses to appear before it, sitting in situ or by way of a video-link, and found that Kenya was under an obligation to facilitate the witnesses' appearance, if necessary by way of compulsory measure.

During an open court session, Judge Akua Kuenyehia, Presiding Judge on these appeals, read the summary of the judgment. She explained that, in the view of the Appeals Chamber, article 64(6)(b) of the Rome Statute expressly gives Trial Chambers the power to compel witnesses to appear before it, thereby creating a legal obligation for the individuals concerned. The Appeals Chamber concluded that there was no error in the Trial Chamber's decision and confirmed it on appeal.

Background: On 17 April 2014, Trial Chamber V(a) granted the Prosecutor's request to summon witnesses who were no longer cooperating or no longer willing to testify. The Government of Kenya was requested to assist in serving the summonses to the witnesses. On 5 June 2014, Mr Ruto and Mr Sang's Defence teams appealed the Trial Chamber V(a) decision.

On 17 June 2014, the Appeals Chamber rejected the Defence's request for suspensive effect, meaning that the appeals procedure did not impact the course of the trial hearings at this stage or the testimony of summoned witnesses. This decision was without prejudice to the Appeals Chamber's judgment on the merits of the ongoing appeals.

On 1 September 2014, the first witness summoned to appear attended the hearing before the Trial Chamber V(a), and four of the nine have testified to date.

For more information on this case, click here.

Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled "Decision on Prosecutor's Application for Witness Summonses and resulting Request for State Party Cooperation"

[pdf]http://www.icc-cpi.int/iccdocs/doc/doc1847142.pdf[/pdf]

[Omollo]

I. KEY FINDINGS
1. Article 64 (6) (b) of the Statute gives Trial Chambers the power to compel
witnesses to appear before it, thereby creating a legal obligation for the individuals
concerned.
2. Under article 93 (1) (b) of the Statute the Court may request a State Party to
compel witnesses to appear before the Court sitting in situ in the State Party's territory
or by way of video-link.

[Kim Jong-Un's Pajama Pants]

This ruling.  Can it be applied to kamwana's case?  I believe that case also has a few recanting and still living witnesses.

[Omollo]

This ruling.  Can it be applied to kamwana's case?  I believe that case also has a few recanting and still living witnesses.

Short answer: Yes

[RV Pundit]

I have a problem with admissibility of such evidence esp in murder like trial whose standard is already beyond reasonable doubt (highest threshold that is). That evidence already have doubt written in it...because someone has recanted and has become hostile witnesses.

Yes Judges have the power to subopena but to what end will such evidence serve the case....yes it might be good in administration of justices cases (say against those obstructing justice)..for for CAH...that evidence just has little or no probative value.

[Omollo]

Pundit

I get where you are coming from and have some sympathy but just that sympathy.

1. It is important that the ICC be taken seriously both by Member States and individual witnesses. Allowing the ICC the power to compel testimony would go along way towards ending injustices created by false witnesses and intimidation. I am sure some of the recanting witnesses believed they could con the ICC, collect a bribe from the accused and return home beyond the reach of the ICC. This ruling is a rude reminder of the reality. May be Bensouda should use it to get back Uhuru's State House meeting witness.

2. It is not unusual to have hostile witnesses in courts in murder trials around the world. The judges (and jurors in some jurisdictions) still have their power to asses the evidence, detect lies and separate fact from fiction. Today it is probably heavier on Ruto / Sang but tomorrow, it will benefit him and other accused persons. That has always been the objective even in the domestic cases;

3. On the probative value of the recanting witnesses: Was it not the position of Khan that he would like an early opportunity to expose the coaching of witnesses? Coaches he named as Mutea Iringo, Karua, Nancy Gitau etc. If he succeeds, he will prove the likelihood of a conspiracy to implicate Ruto.