Judge Olga Herrera Carbuccia based her dissenting opinion on a previous decision the trial chamber made setting out the criteria it would use to assess any “no case to answer” motion in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Judge Carbuccia dissented from the majority decision of Trial Chamber V(a), which terminated the case against Ruto and Sang and vacated the three counts of crimes against humanity they had faced for their alleged roles in the violence that followed the December 2007 presidential election in Kenya.

The decision she referred to is from June 3, 2014 in which Trial Chamber V(a) set out the framework to determine the merits of a “no case to answer” motion.

In that June 2014 decision, the judges unanimously stated that they would not use the beyond reasonable doubt standard to weigh the prosecution’s evidence because that standard applied to the chamber’s final judgement. The judges were of the view that any “no case to answer” motion would be made at the mid-point of the trial, and all that was needed was to assess whether there was prima facie evidence to warrant the defense to present its case.

Another key point in that decision is the judges said that unless a witness’s testimony was beyond belief they would not make any determination on the credibility or reliability of such a witness.

“Decision No. 5 is clear that the ‘no case to answer’ motion ‘does not entail an evaluation of the strength of the evidence presented, especially as regards exhaustive questions of credibility or reliability. The Chamber clearly set out that the standard was one of ‘existence’ rather than ‘weight,’” Judge Carbuccia wrote in her April 5 dissenting opinion.

“Guided by the jurisprudence of the ad-hoc tribunals, the Chamber adopted the standard of taking the Prosecution evidence ‘at its highest,’” continued Judge Carbuccia.

The judge said that based on this previous decision she rejected the application by the defense for the chamber to assess the credibility and reliability of prosecution witnesses.

“In fact, albeit having the opportunity to do so, the Defence did not request leave to appeal Decision No. 5 to contest this standard of review. As a result, the Chamber cannot depart from the legal standard established at an earlier stage of the trial, pursuant to the statutory framework, but also in accordance with the consistent jurisprudence of the ad-hoc tribunals,” said Judge Carbuccia.

“To do otherwise, would be contrary to the principle of legal certainty and overall fairness of proceedings, as it would deliberately contradict the Chamber’s own findings on the principles and procedures that regulate such a ‘no case to answer’ motion,” continued Judge Carbuccia.

She added that it would be “inconsistent” with conducting proceedings expeditiously if the chamber was to assess witness credibility and reliability at this stage and therefore use the standard of beyond reasonable doubt twice in the trial proceedings. That is at the “no case to answer” stage and at the end of the trial.

“Needless to say the implications that such high standard would have on the impartiality of the judges, if and when the no case to answer findings would be reversed in appeal and referred back to the Trial Chamber,” Judge Carbuccia concluded.

It is on this basis that Judge Carbuccia reviewed the evidence of the prosecution and concluded that, “there is sufficient evidence upon which, if accepted, a reasonable Trial Chamber could convict the accused.”

In her dissenting opinion, Judge Carbuccia showed her conclusions about the charges that had faced Ruto and Sang and which evidence had backed those charges. In her footnotes, Judge Carbuccia listed the relevant part of the court transcript of a particular witness’s testimony that supported an aspect of a charge. The judge also listed in the footnotes the number of a particular document or other evidence that supported that charge.

She did not elaborate further how she concluded that the particular evidence she referred to supported the charges. Judge Carbuccia explained that she would have made a more detailed explanation of her reasoning if she was writing a final judgement.

Among the witnesses she listed are the ones whose previously recorded statements the Appeals Chamber determined cannot be used as evidence against Ruto and Sang. In her dissenting opinion, Judge Carbuccia argued how these statements could have been re-introduced as evidence.

“Finally, the power of the Chamber to call evidence in order to search the truth must not be ignored. Although the Chamber cannot compel the accused to call evidence, it has the power and the obligation, pursuant to Articles 64(6)(d) and 69(3) of the Statute, to request the submission of evidence it considers necessary for the determination of the truth,” said Judge Carbuccia.

“In the case at hand, and in light of the Appeal’s Chamber’s judgment disallowing the admission of prior recorded statements pursuant to Rule 68 of the Rules, the Chamber could have requested the submission of evidence, including inter alia, these prior recorded statements, by way of Article 69(3) of the Statute,” Judge Carbuccia said.

“This is particularly significant, since the findings of the Chamber as regards the interference of witnesses in this case remain unscathed despite the Appeals Chamber’s judgment,” the judge concluded.

On August 19, 2015, Trial Chamber V(a) made a majority decision to allow as evidence the previously recorded statements of five witnesses who had recanted their statements or failed to appear in court. Presiding Judge Chile Eboe-Osuji partially dissented. He was of the opinion that the appropriate provision for admitting those statements was Article 69(3). He disagreed with Judges Carbuccia and Robert Fremr that Rule 68 of the Rules of Evidence and Procedure was the right provision to use to admit those statements as evidence.

The Appeals Chamber, without explicitly saying so, agreed with Judge Eboe-Osuji. In its February 12 decision, the Appeals Chamber pointed out that Article 69(3) may have been the better route to admit those statements as evidence

Now, Judge Chile Eboe-Osuji adopted Judge Fremr’s position on the matter as concerns the “no case to answer” motions the trial chamber considered.

“Finally, I am mindful of the Chamber’s authority to request the submission of evidence, or hear witnesses, that it considers necessary for the determination of the truth. However, as a result of the information placed before the Chamber, I am not aware of any evidence that would have been appropriate for the Chamber to call at this stage. I therefore do not believe that the Chamber, at this stage, could call evidence that would bring a change to the outcome of the evaluation made below,” said Judge Fremr in his April 5 decision.

In the first footnote of her dissenting opinion, Judge Carbuccia opined that, “the decision of the majority of the Chamber contains insufficient reasoning, since Judge Eboe-Osuji and Judge Fremr have both given separate reasons.”

In a responding footnote, Judge Eboe-Osuji disagreed.

“The decision of the majority has been more than amply explained in the separate reasons. While it may be the norm in some jurisdictions that judges must speak with one voice in their decisions, no value judgment is either appropriate or necessary to be made in the matter,” said Judge Eboe-Osuji.

“Indeed, in many parts of the world, it is entirely normal and to be expected that judges who serve on a panel may express themselves separately. Notably, in Nigeria, judges who serve on a panel are constitutionally obligated to give their reasons separately: see s 294(2) of the Constitution of Nigeria: ‘Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion,’” the judge concluded.