13 January 2016

Kenya: Prosecution Argues It Has Presented Sufficient Evidence Against Ruto and Sang

A senior prosecutor told the International Criminal Court (ICC) on 12 January that its evidence showed Deputy President William Samoei Ruto hosted and led or was represented in six meetings to plan the violence in Kenya's Rift Valley region which erupted after the December 2007 election.

Senior trial lawyer Anton Steynberg said the meetings took place in November and December 2007, ahead of elections that were held on 27 December 27. Steynberg said the prosecution's evidence showed former journalist Joshua arap Sang participated in one of those meetings.

Steynberg laid out the prosecution's case against Ruto and Sang during a hearing on Tuesday that Trial Chamber V(a) called to listen to submissions regarding defence applications to have the case against their clients dismissed. The chamber has scheduled the hearings and a status conference to continue for the rest of the week.

Saving the Court's time

Trial Chamber V(a) initiated the process of receiving submissions on whether to dismiss the case against Ruto and Sang. The chamber is of the view that if it finds the prosecution has presented insufficient evidence to sustain one or more of the counts against Ruto and Sang, then this process will save the Court's time because the defence will only be required to rebut charges for which there is ample evidence.

Ruto and Sang have been on trial since September 2013 on three counts of crimes against humanity for their alleged roles in the violence that shook Kenya after the December 2007 elections. Both Ruto and Sang were present in court on Tuesday.

Ruto did not order killings

Steynberg said no prosecution witness testified that Ruto ordered any killings. He said the prosecution's evidence did show Ruto vilified the Kikuyu during political rallies, and Steynberg highlighted a number of examples from testimony provided by prosecution witnesses. One example he gave was of a rally during which Ruto is reported to have said that the hammer and the match box were to be used to destroy the houses of Party of National Unity supporters, many of whom were Kikuyu. In 2007, then-President Mwai Kibaki, a Kikuyu, was seeking re-election on a Party of National Unity ticket. Ruto was at the time a senior leader of the opposition party, the Orange Democratic Movement.

Steynberg said that after the election results were declared, violence erupted, and the prosecution's evidence showed that at least three meetings took place to mobilise and implement the common plan that had been discussed in the November and December 2007 meetings. Steynberg said neither Ruto nor Sang attended the mobilisation and implementation meetings. He said the prosecution's evidence did show that Ruto gave money through his assistant, Farouk Kibet, to Kalenjin youths who participated in attacks.

Network is not a formal organisation

In response to questions from Presiding Judge Chile Eboe-Osuji, Steynberg said the prosecution theory that a network headed by Ruto planned, organised, financed and executed the attacks against members of the Kikuyu ethnic group and others was pieced together from the testimony of different witnesses. He said the network, which the prosecution describes in its submissions, is not a formal organisation with official documentation to prove its existence.

Steynberg said that the prosecution is aware the network was formed months before the December 2007 elections.

Problems with witnesses

"That evidence was for one reason or another not forthcoming at trial," Steynberg said, indirectly referring to the challenges the prosecution had in getting some of its key witnesses to testify in court. He did not make any further reference to the witness problems the prosecution had during the course of the trial. Instead, Steynberg concentrated on highlighting the evidence given by those witnesses who did testify that backed the charges against Ruto and Sang.

Steynberg also referred to evidence of a witness who testified about a ceremony conducted by some Kalenjin elders to cleanse about 3,000 youth who had taken part in the attacks. He said the evidence was that the ceremony was to ward off any curse that may befall any of the youths who participated in the attacks because they had shed human blood. According to the evidence, it is during this ceremony that Kibet paid the youth on behalf of Ruto.

The defence stance

At the beginning of the hearing Judge Eboe-Osuji asked the defence to let the chamber know whether they have considered not presenting their case if the chamber declined to accept their applications to dismiss the prosecution's case. He said none of the defence teams had raised this in their applications but in some jurisdictions this is a consideration.

He observed that in the past in some jurisdictions where a "no case to answer" motion was permitted in a criminal trial, lawyers were required not to present a defence case if they filed such a motion. He said in other jurisdictions, lawyers were given the option of deciding whether they wanted to do so. He stated this was on the premise that by filing a "no case to answer" motion, a lawyer was taking the position that the prosecution had not proved its case and there was no reason to defend against it.

Judges expect a decision by Friday

Eboe-Osuji asked the defence lawyers to think about this and let the chamber know their decision by Friday. He added that the chamber was not saying it was mandatory for them to not present a defence case if the chamber decided against their applications.

The chamber has scheduled a day each to hear the prosecution and two defence teams. At the end of each day, the chamber has set aside 30 minutes for the judges to ask questions. This is in addition to questions asked during the course of the submissions.

Tuesday's session was the first one to be held at the ICC's new court building since it moved there in December.

Sang's lead lawyer, Joseph Kipchumba Kigen-Katwa, will make his submissions on Wednesday.

This report comes from the ICC Kenya Monitor, a project of the Open Society Justice Initiative, which offers monitoring and commentary on the ICC's proceedings arising from the post-election violence that erupted in Kenya in 2007-2008.

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