African Union Says ICC Trial Judges ‘Broke Law’ In Kenya
In the Case Involving Deputy President William Ruto And Journalist Joshua Sang
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Trial judges broke the law in admitting redacted testimonies as evidence against Deputy President William Ruto and journalist Joshua Sang, the African Union has told the ICC.
In submissions in support of an appeal by the two, the AU said the amended Rule 68 cannot be applied in the present case without offending other articles of the Rome Statute.
The AU says the application of amended Rule 68 would be retroactive and would be “detrimental” to Ruto and Sang.
The AU said Article 51(4) is explicit that amendments to the Statute or the court’s rules “shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.”
“The explicit message in this text should be self-evident. It affirms in plain language that States Parties in their wisdom never aimed to pass the cost of any rule change on to the unsuspecting African accused presently before the Court, in naked violation of core statutory provisions,” the AU told the court on Monday.
The AU gave the verbatim text of contributions by Nigeria, South Africa and Kenya at the ASP showing the rule was not to be applied retroactively.
“Representatives of these African States publicly declared their understanding of the consensus reached on the non-retroactive application of Rule 68,” the AU told the ICC.
The Trial judges allowed prosecutor Fatou Bensouda to add recanted testimonies of five witnesses to her evidence using the amended Rule 68.
Ruto and Sang have appealed the decision, saying it violates their rights for a fair trial and goes against the consensus of the ASP that the rule should not be used in the present case.
The AU applied to join the proceedings as a friend of the court to explain the amended Rule 68 cannot apply to this case because this would violate several fundamental provisions of the ICC Statute.
The AU argues the admission does not serve the purposes of the amendments as the prior recorded testimony “will neither streamline proceedings nor deter past conduct.”
The AU also said amended Rule 68 was not intended to apply retroactively to the prejudice of the accused is confirmed by the negotiations and declarations at the ASP.
