In a local magistrate’s court, the cards are so stacked against the accused that some people say before the ICC the accused is guilty until proven innocent.

As the International Criminal Court proceeds to review the evidence presented by prosecutor Luis Moreno Ocampo and that of the defence teams, one would expect the court to apply strict rules of evidence.

Surprisingly, this is not the case. A local magistrate’s court operates under a stricter regime of laws governing trial than the ICC does. In fact, compared to a magistrate’s court, the cards are so stacked against the accused person at the International Criminal Court that some people say the accused is guilty until proven innocent.

6 people;The Kenyans whom the International Criminal Court prosecutor Luis Moreno-Ocampo has accused of bearing the biggest responsibility for the post-election violence and whom the ICC has summoned to The Hague

National courts have strict rules set by Parliament that govern what is acceptable as evidence and what the court can allow to be tendered before it. With international courts, this decision is largely left to the judges who decide as they go along what to accept or reject.

The international court is left to determine the rules of evidence that best favour the fair determination of the matter before it. A prosecutor at an international trial, therefore, finds it easier to tender evidence on an allegation against an accused person than would his counterpart in a national court.

The international court allows the prosecution to tender whatever they have and then decides what to accept. But the national prosecutor is not allowed to tender to court evidence that does not strictly comply with the rules. The evidence is dismissed outright, and the court does not get to see it.

The rationale for these relaxed rules is that international courts have to try complex cases involving numerous witnesses, documents, facts and issues. To expedite the trial process, it is felt necessary to free the court from too many technical rules and allow it to decide matters in a way that achieves substantial justice.

The following are some of the differences in the rules of evidence between international trials and national courts.

The best evidence rule does not apply

In national courts, the prosecution is always required to present the best evidence for the fact it wishes to prove. For instance, to prove bank fraud, the prosecution must tender in evidence the cheque that the accused used to withdraw the money. Without the cheque, the case would collapse.

The international prosecutor, however, presents the best evidence available. His case does not collapse simply because the cheque is not available. He is allowed to tender any evidence available that may show the suspect defrauded the bank.

Hearsay is admissible

Hearsay is evidence that does not originate from the witness. It is like a rumour. A witness is not allowed in national courts to say “I was told he said it”. If the witness did not hear it himself, he is not allowed to state it.

The general rule in international courts is that hearsay is allowed. A witness can testify what he was told by a third party, and the court can accept that as evidence.

Contradictions, inconsistencies do not necessarily discredit a witness

At an international court, mere contradictions and inconsistencies do not undermine the credibility of a witness.The court looks at whether it believes the witness on the essential aspects of his testimony. If it does, it takes what it believes is true and ignores what is unreliable.

In national courts, such a scenario would invariably result in the witness’s entire testimony being disregarded.

Documentary evidence is accepted easily

Some of the strictest rules of evidence in national courts concern documentary evidence. For instance, the prosecution cannot tender a document in evidence without calling its maker.

At an international court, there are no such requirements. A document can be tendered from any source and accepted by the court. A signature can even be proved without a handwriting expert testifying. The court can accept the evidence of a witness who says he recognises the signature.

The indictment does not have to be strictly specific

The national prosecutor has to be absolutely specific in the charge that he lays against the accused. On a charge of murder, he must specify the person or persons killed. The international prosecutor does not have to do so.

Where the precise identification of murder victims cannot be specified, a reference to their identity as a group is enough. He can charge a person with killing 10 Kenyans without naming each of them.

Medical evidence is not critical

The international prosecutor does not have to tender medical evidence to prove the elements of the crime with which he has charged a suspect. On a charge of rape, he doesn’t have to tender medical reports and laboratory findings. The testimony of the woman that she was raped is enough. Neither does he have to provide post-mortem reports to prove his charge of murder.

A witness’s evidence can be accepted without testimony

In a national trial, if a witness dies, that is usually the end of his testimony. Not so internationally. If a witness cannot testify, for instance, due to illness or death, the prosecution can tender their written statement obtained during investigation. This would be an outrage in a national court.

Payments to witnesses do not discredit their testimony

The fact that a witness has been receiving monetary payments from the international prosecutor is not relevant in assessing the credibility of the witness. In international trials, there is no presumption that payment to witnesses is wrong. The international prosecutor has a lot of leeway to give witnesses financial assistance or to relocate them to better lives in other countries without affecting their credibility.

The identity of a witness can be hidden from the accused

In a national trial, no witness can testify without appearing openly in court in front of the judge, the accused and his lawyers. At international trials where a witness needs special protection, he can testify using a pseudonym and through video with his face and voice distorted. And where his testimony can make the witness be identified, he can give his evidence in a general way without being too specific.

Court can call for additional evidence

National courts sit as arbitrators between two opposing sides. It is for each side to tender its evidence and the court to rule who it believes has won the case. International courts operate like commissions of inquiry. They can order the prosecution to produce additional evidence or they themselves can summon extra witnesses.