The lead lawyer for Deputy President William Samoei Ruto told the International Criminal Court (ICC) that the prosecution has failed to prove Ruto was involved in the violence that followed the December 2007 election.
Karim Khan told the judges of Trial Chamber V(a) on Thursday that the prosecution has been unable to prove its theory that Ruto was the head of a network that planned, organised and financed the violence in the districts of Uasin Gishu and Nandi in the Rift Valley region.
Khan was making the case for Ruto's acquittal during hearings the chamber called to listen to submissions on whether the defence should be called to make its case.
The defence teams of Ruto and former journalist Joshua arap Sang filed their "no case to answer" motions in October and November last year after which the prosecution and victims' lawyer filed their responses. The issue of whether the defence has a case to answer came up once the prosecution stated last September that it had concluded its case.
Ruto and Sang are each facing three counts of crimes against humanity for their alleged roles in the violence that wracked Kenya after the December 2007 election.
Khan said on Thursday that during the pre-trial stage, the prosecution had said it had evidence the network included a military, a political and a financial wing. He said that during opening statements at the beginning of the trial in September 2013, the prosecution used an organogram to show how the network was organised.
Those arguments had diminished by the time the prosecution filed its response to the defence motion for acquittal, said Khan. He said the prosecution made no mention of a military wing, referred to a quarter of the previous financial wing and only half of the previous political wing. According to Khan:
"We'd ask that you bear this prosecution slide (organogram) in mind when considering whether the defense should be required to put up a defense."
In reference to three planning meetings prosecution witnesses had said Ruto hosted in his home near Eldoret town, Khan said news reports for the dates the meetings were supposed to have taken place showed Ruto to be elsewhere. He said the dates the witnesses gave for the meetings corresponded with the campaign period leading up to the December 2007 elections and there was a lot of interest in how those campaigns were progressing. Khan said it was difficult in that context for Ruto, who was then a leader of the opposition party, the Orange Democratic Movement, to hold meetings away from media scrutiny and plan violence.
Khan also referred to another prosecution witness who testified about a cleansing ceremony for the Kalenjin youth who had participated in the violence. He said the testimony that Ruto's assistant, Farouk Kibet, was present at the ceremony and paid the youth money for participating in the violence was "fictitious". He said that testimony was unsupported by other evidence. According to Khan:
"It doesn't show anything that could support an allegation of individual criminal responsibility."
As has been the case with lawyers Anton Steynberg and Joseph Kipchumba Kigen-Katwa, Presiding Judge Eboe-Osuji asked Khan questions as he made his submissions. When Khan was making his point about news reports showing Ruto was not where witnesses had said he was, Khan went on to say that when confronted with those news reports, the prosecution should have presented rebuttal witness.
Judge Eboe-Osuji asked Khan when was it the right time for the prosecution to call rebuttal witnesses. Khan replied that the prosecution should have applied to add more witnesses to its list.
Then Judge Eboe-Osuji asked, "Isn't it normally at the end of defence case that the prosecution seeks to put rebuttal witnesses?"
Khan's response was that the prosecution should have called rebuttal witnesses when some of its witnesses were declared hostile. "In circumstances, particularly where a witness has recanted evidence, they could have and we say should have sought to bolster the accounts of their witnesses", Khan continued.
He concluded his submission by showing several video clips taken between 2005 and 2008 in which Ruto was seen advocating for Kenyans to live together and calling on people to be peaceful.
Wilfred Nderitu, the lawyer for victims, will make his observations on Friday morning. Also scheduled for Friday's hearing is Steynberg responding to the defence submissions.
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.