October 13, 2015


The decision permitted the prosecution to use prior recorded statements of five witnesses who had recanted their evidence.

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ICC Enjoins The AU As Friend Of Court In Ruto’s Case

The African Union has been allowed to join defence teams of Deputy President William Ruto and journalist Arap Sang in an appeal seeking to overturn a decision which permitted the prosecution to use prior recorded statements of five witnesses who recanted their evidence.

This was after the Appeals Chamber on Monday granted the African Union Commission’s request to submit observations on amendment to Rule 68.

In their ruling on August 19, Trial Chamber judges allowed Prosecutor Fatou Bensouda to use as evidence the recorded testimony of five hostile witnesses, a decision that Ruto and Sang moved to appeal through their defense teams.


Last week, the African Union requested to be enjoined as amicus curiae (friend of the court) in case at the ICC. The AU in its application asked the judges to allow it to clarify on the applicability of the amended rule and its possibility to be unfavorable to the person being investigated, prosecuted or convicted.

It also wanted to submit views on the retrospectivity agreement on use of Rule 68 and held the same position as Kenya, Uganda and Namibia in arguing that Rule 68 could not be applied on Kenyan cases as there was an agreement that it could not be employed retrospectively.

The AU was granted up to October 19 to file written submissions as amicus curiae (friends of court) in the decision in which the trial chamber allowed the prosecution to use prior recorded statements of the witnesses who recanted their testimony.

“The Appeals Chamber considered that the observations the African Union wishes to make may be desirable for the proper determination of the first issue on appeal without prejudice to the weight, if any, to be accorded to them in the determination of this appeal,” the chamber stated.


However, the judges rejected the applications by the governments of Kenya, Uganda and Namibia, saying “the submissions that Kenya, Uganda and Namibia seek to make in relation to the first issue certified on appeal would be a duplicate of those that the AU seeks to make.”

The countries had through their Attorney Generals separately lodged similar applications requesting to be allowed to submit views regarding the application of Rule 68 as ‘friends of the court’.

In his request to the court, Muigai had to be allowed to submit his observations on the appeal on application of Rule 68 “to assist in the proper determination of the case while his” Uganda counterpart Fredrick Ruhindi said it was important for his country’s opinion on the matter to be heard since complex issues were raised from the manner in which the judges permitted the use of the recanted testimony.

“It would be in the interest of justice for the Appeals Chamber to hear observations and perspectives from States Parties, such as the Republic of Uganda.” he said.

Early last month, Bensouda announced that she had closed the Ruto and Sang’ case.


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