The Victims‘ Legal Representative and the Prosecution have remained steadfast that the evidence presented before the Trial Chamber of the ICC is sufficient to lead to a conviction of Mr William Ruto and Radio Journalist Joshua arap Sang.
The two: the Prosecution led by Anton Steynberg and Wilfred Nderitu the Victims representative were responding to the two accused defense submissions on Friday in the no-case-to-answer-motion.
Nderitu faulted the Defence submissions that the Prosecution had used untested evidence an aspect he said the defense lost an opportunity to test it.
“The Mr. William Ruto defense brought in the issue of untested evidence. The evidence said to be untested was evidence in relation to which the Ruto defense had the opportunity to test, but did not test in relation to Rule 68 of the Rules and Procedure.”
“It is not so much the actual cross examination or production of evidence to give a rebuttal but, the availability of reasonable opportunity,” Nderitu added.
The Victim’s lawyer noted that the Waki Report which was admitted by the Trial Chamber brought out well the political context of the Kenyan situation during the 2007/08 Post Election Violence. He noted that it was improper to compare the US and Kenya. America has a different political context in comparison to what Kenya had in 07/0. For instance, Kenya can’t be compared to Burundi in current situation.”
On the other hand, the Prosecution informed the Chamber that, “What we need to look at is the onus of proof of guilt and the burden of proof may lie on any party either the defense of the prosecution,” this was in response to Karim Khan the William Ruto defense Counsel who on Tuesday said the burden of proof only lies with the prosecution.
Steynberg further said the current case did not require them to provide proof of the Kenyan violence cases of the 1992, 1994 and 1997 as alleged by the Defense. “We are not required to prove this. We are meant to proof that the 2007/08 Post election Violence was organized.”
On proving the existence of an organizational network, the prosecution says there was danger of conflating the argument in relation to Article 25 of the Rome Statute. Thus, the prosecution said, “We do not have exhaustive criteria of the composition of the network. However, the most important is the ‘association’ that can be: attendance at meetings, behavior in relation to other members and the furthering of the aims and objectives of the group and in essence joined in the common plan.”
The prosecution further argued that Mr. Ruto held a more ‘significant position’ in the Kalenjin Community to enable him advance the common plan. “He was chosen by the Kalenjin to represent them. He was the only Kalenjin member of the ODM pentagon. Perpetrators of the crime acted with the utmost compliance to him. It is not destructive to the Prosecution’s assentation that Ruto held some authority.”
On the issue of the prior recorded evidence under Rule 68, the Prosecution said before admitting it, the chamber had found a clear pattern of interference that lead to some recanting their evidence. “On Rule 68, a reasonable chamber must rely on the evidence and give an assessment of the weight attached.”
“The chamber needs to look at the credibility of the witnesses because there is a reason as to what led them to being bribed or to recant. However, the Prosecution is not relying on it as a substantial proof, their evidence may be of relevance in assessing the credibility of their prior recorded and recanted evidence,” The Prosecution argued.
The appeals court is yet to rule on the admission of the prior recorded evidence.
