Renown Lawyer Explains How Gicheru’s Conviction May Lead To The Reopening Of Ruto’s ICC Case

There are chances that the conviction of embattled lawyer Paul Gicheru may lead to the reopening of DP Ruto’s ICC case, Lawyer Wahome Thuku posits.

The renown advocate has today shared a comprehensive explanation, noting the instances and rules set out by the International court that can lead to the reopening of a case, where there is evidence of witness bribery, intimidation or elimination.

SO, if the ICC were to convict lawyer Paul Gicheru, for corruptly influencing the 8 witnesses in the William Ruto case, then what?

There are two ways to look at this.

One, if Gicheru was convicted, then the court may also go for anyone else who was substantially part of the same scheme. That is straight forward.

The other more complex step would be to revive the original case using evidence already recorded by the 8 witnesses.

The ICC was designed to deal with heavily influential people – those who bear the highest responsibility for genocide, war crimes, crimes against humanity and the crime of aggression. committed in their countries.

The court is also aware that such persons can intimidate, harass, bribe, influence, coach of even harm or kill witnesses prepared to testify against them at the ICC.

To mitigate this situation, the court formulated rules aimed at protecting, safeguarding and receiving evidence already collected from witnesses who subsequently get intimidated or harassed hence unable to appear to testify. Or even witnesses who may be killed after recording the evidence with the ICC investigators.

Rule 68 of the ICC Rules of Procedure is what the court uses to secure already collected evidence – be it in form of videos, audio records or written statements.

In fact Rule 68 is about “Prior Recorded Evidence”. Prior here indicates the evidence was recorded before something happened to the witness. In other words, the court formulated the rules to ensure that even if a witness goes missing, his evidence remains live in court.

Rule 68(2) states that, “If the witness who gave the previously recorded testimony is not present before the Trial Chamber, the Chamber may allow the introduction of that previously recorded testimony in any one of the following instances,”

The rules then give several of those instances. One of the instances is when that prior recorded testimony comes from a person who has since been subjected to interference.

However, even then, the court still needs to be satisfied on a number of issues before it can admit that evidence.

The judges must be satisfied that the witness has failed to give evidence because he/she has been influenced by improper interference, including threats, intimidation, or coercion.

The court must also be convinced that reasonable efforts have been made to secure the attendance of the person as a witness.

Three, the court must also be convinced that the interests of justice are best served by the prior recorded testimony being introduced.

That explains to you everything. It means should the ICC convict Gicheru, then the tatements recorded by the 8 witnesses whom he influenced may be revived as evidence in the Ruto/Sang case. And they would be used even if the writers are long dead or disappeared.

Remember the case against Ruto/Sang was terminated with the key rider that the prosecution was at liberty to revive it or start fresh proceedings if the missing evidence became available. In this case the statements are still on record, its the makers who disappeared.

This is a system that all courts should adopt even in Kenya. That if I kill a witness to stop him from testifying against me, his prior recorded statement would still be admissible if its proven that he was killed to block him from testifying.

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