William Ruto and Joshua Sang at the International Criminal Court (ICC)

Today, the Trial Chamber V(A) of the International Criminal Court (ICC) decided that the case against William Ruto and Joshua Sang is to be terminated.

The Chamber considered the requests of Mr Ruto and Mr Sang that the Chamber find that there is ‘no case to answer’, dismiss the charges against both accused and enter a judgment of acquittal.

On the basis of the evidence and arguments submitted to the Chamber, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr, as the majority, agreed that the charges are to be vacated and the accused are to be discharged. They provided separate reasons for this decision.

Judge Fremr found that there is no case for the accused to answer based on the fact that the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused. Accordingly, he considered that there is no reason to call the Defence to bring their case or to prolong the proceedings any further.

Judge Eboe-Osuji, concurring with Judge Fremr’s evidential assessment, also vacated the charges and discharged the accused without prejudice to re-prosecution in the future. However, he declared a mistrial in the case, because it cannot be discounted that the weaknesses in the Prosecution case might be explained by the demonstrated incidence of tainting of the trial process by way of witness interference and political meddling that was reasonably likely to intimidate witnesses. In his opinion, Judge Eboe-Osuji also discussed several matters including reparations, immunities and elements of the “crimes against humanity” definition.

The majority of the Chamber also concluded that a judgment of acquittal was not the right outcome, but only vacation of the charges and discharge of the accused. The majority also agreed that there is no reason to re-characterise the charges.

Judge Herrera Carbuccia appended a dissenting opinion. She considered that the Prosecution case had not ‘broken down’ and she concluded that there is sufficient evidence upon which, if accepted, a reasonable Trial Chamber could convict the accused.

The decision of the Trial Chamber does not preclude new prosecution in the future either at the ICC or in a national jurisdiction. This decision may be subject to appeal.

Deputy President William Ruto and journalist Joshua Sang were accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in the context of the 2007-2008 post-election violence in Kenya.