Blow to Bensouda as Appeals Chamber rejects recanted evidence in Ruto, Sang case

Blow to Bensouda as Appeals Chamber rejects recanted evidence in Ruto, Sang case

Deputy President William Ruto and journalist Joshua Arap Sang can now breathe a sigh of relief after the International Criminal Court (ICC) Appeals Chamber rejected the use of prior recorded testimony in their case.

The legal error made by the Trial Chamber, according to the Appeal’s Chamber, is that the application of Rule 68 on recanted evidence was retroactive as the trial had started on 10th September 2013 before the amendment of the rule.

This means that by using recanted evidence it would negatively affect Ruto an Sang’s position as they would not have the right to cross examine the witnesses and that they did not expect that evidence was going to be used against them after it was recanted.

“The application of this rule affected negatively the case of Mr. Ruto and Sang. The term detriment should be interpreted broadly and not limited to rights of accused,” said presiding Judge Piotr Hofmański.

The appeal’s chamber also noted that the trial chamber erred by saying the rule on retroactivity only applies on substantive issues and not procedural issues. The chamber ruled that retroactivity applies on both substantive and procedural issues of the Rome Statute, with Rule 68 being among the rules of procedure.

This means that the prosecution’s case has been dealt a major blow at least according to the submissions from prosecution while seeking to have the application of Rule 68 in 2015.

The African Union had threatened to withdraw from the Rome Statute if the Appeals Court ruled otherwise. It remains to be seen how the prosecution responds to the latest ruling as Ruto and Sang await another verdict on a no-case-to-answer motion they filed.

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